1 IN THE HIGH COURT OF BOMBAY BENCH AT PANAJI PIL WRIT PETITION NO. 05 OF 2007 Adv. Aires Rodrigues, ) r/o. B 30 Flat No.T-1, ) Ribandar Retreat ) Ribandar, Tiswadi, Goa. ).. Petitioner VERSUS 1. The State of Goa ) by its Chief Secretary, ) Secretariat ) Porvorim, Goa. ) 2. Mr. Nilkant Halarnkar ) `Parliamentary Secretary', ) Secretariat, Porvorim, Goa. ) 3. Mrs. Victoria Fernandes, ) `Parliamentary Secretary', ) Secretariat, Porvorim, Goa.(Deleted) ) (Amendment carried out as per order ) dated 4.9.07) ) 4. Mr. Francisco Silveira, ) `Parliamentary Secretary', ) Secretariat, Porvorim, Goa. ) 5. Mr. Agnelo Fernandes, ) Chairman, EDC Limited, ) Panjim, Goa. ) 6. Dr. Wilfred D'Souza ) Deputy Chairman, ) Goa State Planning Board, ) Secretariat, Porvorim, Goa. ) 2 7. Mr. Eduardo Faleiro ) Commissioner of N.R.I. Affairs, ) Secretariat, Porvorim, Goa. )..Respondents -0- Petitioner in person. Mr. S.S. Kantak, Advocate General with Mr.A. Kamat, Additional Government Advocate for the respondent No.1. Mr. S.K. Kakodkar, Senior Advocate with Mr. Nitin Sardessai for the respondent Nos.2 and 4. Mr. C.A. Ferreira for the respondent No.5. Mr. Amey Kakodkar for the respondent No.3. Mr. V. Braganza for the respondent No.6. Mr. V.A. Lawande for the respondent No.7. -0- CORAM : SWATANTER KUMAR , C.J. & N.A. BRITTO, J. DATE OF RESERVING THE JUDGMENT : 21 st NOVEMBER, 2008 DATE OF PRONOUNCING THE JUDGMENT : 22nd JANUARY, 2009 JUDGMENT (PER SWATANTER KUMAR, C.J.) The Petitioner who is a practising advocate and who also claims to be a public spirited citizen, has approached this court by way of present Public Interest Litigation under article 226 of the Constitution of India wherein, on the strength of Constitutional mandate contained in Article 164(1A) of the Constitution of India, he questions the authority of respondent Nos.2 to 4 to hold the posts of `Parliamentary Secretaries' and enjoy the status of Cabinet 3 Minister and also questions respondent Nos.5 to 7 appointed to different posts in the State administration, as to how they enjoy the status and rank of Cabinet Minister. He also prays that the orders at Annexures `P2' collectively and `P4' collectively relating to respective group of respondents be revoked and cancelled being violative of the Constitutional mandate. 2. It is the case of the petitioner that the recent Assembly Elections which were held in May 2007, resulted in the fractured mandate from the electorate, with the Congress bagging 17 seats, BJP 14, NCP 3, MGP 2, Save Goa Front 2 and Independents winning 2 seats. As a consequence of this people's mandate, the Congress opted for support of its allies and was permitted to form a Government. Article 164(1A) requires that total number of Ministers, including Chief Minister, in the Council of Ministers in a State shall not exceed 15% of the total number of members of the Legislative Assembly of that State. Under proviso to Article 164, the total strength of Ministry shall not be less than 12. Applying this principle, the strength of Ministers including the Chief Minister in the Cabinet of the State cannot exceed 12. Vide Annexure P1, all the 12 posts of Cabinet/State Ministers had been filled up by the 4 Chief Minister allotting different portfolios. Despite the fact that the prescribed strength of Ministers including Chief Minister had already been filled up, the Government in a hurried manner and to frustrate the Constitutional directive appointed respondent No.2 to 4 as `Parliamentary Secretaries' with Cabinet rank/ status without any formal notification. However, notifications in this regard were issued on 6 th July, 2007, 9 th July, 2007 and 10 th July, 2007 appointing Shri Nilkanth Halarnkar, Mrs. Victoria Fernandes, and Shri Francisco Silveira,all three Members of Legislative Assembly as `Parliamentary Secretaries' and these notifications are collectively annexed to the writ petition as Annexure `P2'. These respondents were sworn in by the Chief Minister. All these respondents have been accorded status or rank of a Cabinet Minister and permitted to engage 11 staff members of their own in line with the status and have also been provided with all the facilities and privileges of the Cabinet Minister. In addition to this, the respondent Nos. 5, 6 and 7 were appointed to different posts in the Government administration with rank / status of Cabinet Minister conferred upon them. Vide notifications dated 28 th March, 2006, 2 nd July, 2007 and 10 th July, 2007, respondent No.5 was appointed as Chairman of Economic Development Corporation respondent No.6 as Deputy Chairman, 5 State Planning Commission and respondent No.7 had already been appointed as Commissioner of NRI affairs and all of them were conferred with the status of Cabinet Ministers. The notifications have been annexed to the writ petition as Annexure `P4'. 3. According to the petitioner, the very purpose of the 91 st Amendment of the Constitution which restricts the size of Cabinet, was to prevent the installation of jumbo cabinets and resultant huge drain on the public exchequer. All these persons were not only appointed ostensibly as `Parliamentary Secretaries' and as heads of Board, Corporation and Commission, but they were permitted to enjoy the status of Cabinet Ministers thus, in fact, defeating the very purpose of the amendment. In view of the prohibition contemplated under Article 164(1A) appointment of all these respondents is a back door entry and is in willful disobedience of the mandate of law. There is no legal power vested in the Government for making appointments as `Parliamentary Secretaries' with the status of Cabinet Ministers and they cannot be made in the garb of exercise of executive powers. The Chief Minister does not have any power or authority to administer oath not being backed by any appropriate law. The `Parliamentary 6 Secretaries' are privy to official information and have access to official files and official documents in the course of the decision making process of the Government. Administering oath to respondent Nos.2 to 4, thus, is without any authority of law while respondent Nos.5 to 7 have not even been administered oath of secrecy which give them undue advantage of access to Government information, records and opportunity to participate in making Government policy without being bound by oath. The petitioner has specifically averred in the petition that the MLAs or party functionaries cannot be appointed to these posts even if there was some authority in law for making such appointments. Political patronage seems to be the order of the day and appointments for chairmanship of statutory corporations or Government corporations are made mala fide, in colourable exercise of power and with tearing hurry for political patronage, thus, are bad in law. Vide notice dated 11 th July, 2007, the petitioner called upon respondent No.1 to immediately revoke and cancel the aforesaid appointments and conferments of the Cabinet status but of no consequence. According to the petitioner,these appointments besides being illegal and arbitrary are abuse of the power and it is at huge public cost particularly when they are entirely unwarranted 7 and the respondents have no authority to continue to function in that status. 4. During the pendency of the present writ petition, the appointment of respondent No.3 as Parliament Secretary was revoked by the Government itself vide order dated 17 th August, 2007 and her name was resultantly deleted from the array of parties. The said order reads as under: “No.45/16/2007-GAD-III Government of Goa, General Admn. Department, Secretariat, Porvorin. Dated: 17/08/2007 Read: Govt. Order No.45/16/2007-GAD-III O R D E R The appointment of Smt. Victoria Fernandes, M.L.A., as `Parliamentary Secretary' made vide Government order cited above stands cancelled with effect from 14/08/2007. By order and in the name of the Governor of Goa Sd/- (S.G. Korgaonkar) Joint Secretary (GA) 8 1. Smt. Victoria Fernandes, M.L.A. Santa Cruz Constituency. 2. The Office of Chief Minister, Secretariat, Porvorim, Goa. 3. The Director of Accounts, Panaji. 4. The Sr. Dy. Accountant General (Audit), Goa, Audit Bhavan, Porvorim. 5. The Accounts Section, GAD, Secretariat, Porvorim. 6. Guard file.” 5. Separate reply affidavits to this writ petition are filed. According to the State, the writ petition is without any merit and has not been filed in public interest. It is stated that earlier, BJP led coalition Government had also appointed `Parliamentary Secretary' with Cabinet rank and after the Congress led coalition Government came to power in June, 2005, Shri Agnelo Fernandez, Member of Legislative Assembly, was appointed as `Parliamentary Secretary' on the same terms and conditions as were applicable to the earlier appointees. The petition is stated to be a result of political vendetta. Appointment of `Parliamentary Secretaries' is stated to be a longstanding convention and they were appointed even in the year 1951. However, during 1967 to 1984, there was no appointment of `Parliamentary Secretaries'. These posts do not form part of the Government and they have no executive power. They assist Minister concerned in discharge of his duties and 9 functions. Even earlier, the post of `Parliamentary Secretary' was created and appointments were made by the previous Government. The proposal for such appointment was considered and approved vide order dated 5th October, 2004. However, only one post of `Parliamentary Secretary' was created and filled up at different times. After coming into power, the present Government, in addition to one post, created two more posts of `Parliamentary Secretaries' with effect from 6 th July, 2007 vide its order dated 11 th July, 2007 which reads as under: “No.1/8/2004-GAD-P, Government of Goa, General Admn. Department, Secretariat. {Porvorim,/ Dated”- 11 th July, 2007 O R D E R The Governor of Goa is pleased to accord sanction for the creation of two posts of “Parliamentary Secretaries” in the office of Chief Minister with effect from 06.07.2007. The terms and conditions of appointment and functions of the Parliamentary Secretary shall be issued separately. By order and in the name of the Governor of Goa Sd/- 10 (D.H. Kenaudekar) Under Secretary (GA) To 1. The Officer on Special Duty to Chief Minister, Secretariat, Porvorim. 2. The Director of Accounts, Panaji. 3. The Sr. Dy. Accountant General (Audit), goa, Audit Bhavan, Porvorim. 4. The Accounts Section, GAD, Secretariat, Porvorim. 5. Guard file.” 6. The Notifications as stated by the petitioner are annexed to the reply. All the three `Parliamentary Secretaries' are stated to have assumed the charge of their offices. In the reply, it is stated on behalf of the respondent No.1 that one post of `Parliamentary Secretary' was proposed on 17 th August, 2004 primarily to assist the Chief Minister for official work. A post was created even stating the terms and conditions of the appointment of the `Parliamentary Secretary' on 5.10.2004. In relation to the said appointments even terms and conditions and functions were sought to be defined. For the current Government, three persons were appointed as `Parliamentary Secretaries' and, according to the respondent, two posts were created on 6 th July, 2007 and orders were issued on that date. However, as on the date of filing of the reply viz. 24 th July, 2007, the Government had not issued orders regarding the terms of 11 appointment and regarding their functions and duties which were stated to be under consideration of the Government though their appointments had already been made effective. It was stated that respondent Nos.2 to 4 were administered oath of secrecy by the Chief Minister and respondent Nos.5 to 7 had not been administered any oath however, respondent Nos.5 to 7 have also been conferred with the status of a Cabinet Minister. As far as respondent No.6 is concerned, it is stated that he was appointed as Deputy Chairman of Planning Board and was conferred the status of Cabinet Minister as per past practice. Similar is the stand taken vis- a-vis the other respondents. It is denied that the respondent Nos.2 to 4 have any access to Government records and are privy to the Government policy. In regard to the authority of the State Government, it is stated that in terms of Article 162 of the Constitution of India, the Government has executive power to make appointments and the appointments are made in exercise of such powers. 7. Separate affidavits were filed on behalf of the respondent Nos.4,5 and 7 respectively. The case put forward by respondent No.5 is that the General Assembly Elections were held in Goa in 12 May, 2007. The petitioner was actively and openly campaigning and canvassing against Indian National Congress Nationalist Congress Alliance. Since the Alliance parties have returned to power, petitioner supporting Bharatiya Janata Party has filed this petition by way of political vendetta. This respondent claims that he was also appointed as `Parliamentary Secretary' in the year 2005 vide order dated 2 nd August, 2005 but later he resigned and thereafter vide order dated 28 th June, 2007, he was appointed as Chairman of Economic Development Corporation Limited with the status and rank of Cabinet Minister and was not administered the oath of office or secrecy. The allegations with regard to his appointment as Chairman of State Planning Board or any arbitrariness in his appointent to EDC, are denied. 8. According to respondent No.4, the `Parliamentary Secretary' or Minister does not hold the public office and since it is not a public office, the appointment cannot be challenged in a Public Interest Litigation and petitioner has no locus standi to file the present petition. On merits, it is stated that the `Parliamentary Secretary' in the office of the Chief Minister is not a Member of Council of Ministers (Cabinet) and is no part of the Government. 13 The appointment is at the discretion of the Chief Minister. The conferment of Cabinet status or rank on `Parliamentary Secretary' is neither illegal nor undesirable. It is denied that conferment of the status is a back-door entry to the appointment as Cabinet Minister and, to be a part of the Council of Ministers. According to this respondent, it is not necessary to enact any law or legislation for appointment to this post. It is also denied that appointment of `Parliamentary Secretary' is by way of largesse and violates Article 14 of the Constitution of India. The `Parliamentary Secretary' holds the post during the pleasure of the Minister to whom he is attached. It is also denied that the appointments were made in a tearing hurry or for political patronage or with ulterior motives. 9. According to the reply filed by respondent No.7 through his Constituted Attorney, vide order dated 28 th March, 2006, in pursuance to the policy decision of the State Government, the appointments were made and the policy of the Government cannot be challenged in the writ petition. It is denied that the order of appointment of the said respondent was intended to circumvent the 91 st Amendment to the Constitution. The conferring of Cabinet rank on the person appointed does not contravene the provisions of 14 Article 14 of the Constitution. This respondent claims that he has equivalent rank of the Cabinet Minister. 10. To the replies filed by the respective respondents, the petitioner has filed a rejoinder wherein he has reiterated the facts stated in the writ petition and stated that the Public Interest Litigation is maintainable. According to him, he had campaigned for Bharatiya Janata Party and he has filed various litigations in the forefront of actions to combat pollution, environmental degradation and to fight against injustice, corruption and wastage of public funds and, in the same public spirit, he has filed the present petition. After 91 st Amendment to the Constitution, back-door entry appointments cannot be made in the manner in which they have been done by the respondent-Government. The appointments have been made in undue hurry without any need and only to favour and keep in control the respondent No.2 to 4 and to please even the other respondents at the cost of the public exchequer. There cannot be any difference between the Cabinet Minister and a person ostensibly been conferred with the rank and status of a Cabinet Minister. The Executive power of the State is expressly subject to the provisions of the Constitution and Article 162 cannot 15 be used to defeat the Constitutional mandate contained in Articles 14 and 164(1A) of the Constitution of India. The appointments should not be made at the whims and fancies of the Chief Minister. The appointments of such MLA and conferment of such benefit of status of Cabinet Minister and post of `Parliamentary Secretary' is mala fide and it is to appease party MLAs. It amounts to back-door entry and fraud on the Constitution which restricts the number of Cabinet posts. In the rejoinder, it has also been averred that the posts of `Parliamentary Secretaries' were not even created when the concerned respondents were appointed or sworn in as `Parliamentary Secretaries' but were created later even without concurrence of the Finance Department which, as per the own showing of the respondents was taken on 11 th July, 2007 though the appointments had been made between 6 th to 10 th July, 2007. The tearing hurry of such appointments is, thus, self-evident and cannot withstand scrutiny of law. Legislative history and objects and reasons for 91 st Amendment relating to Article 164(1A) of the Constitution of India. 11. Ours is a Federal Constitution. The Government of India Act, 1935 dealt with Administration of Federal Affairs under 16 Chapter II of the Act. Section 9 of the Act while dealing with Council of Ministers stated that there shall be a Council of Ministers, not exceeding ten in number, to aid and advice the Governor General in exercise of his function, except for the matters which by or under that Act were required to be exercised in its functions in the discretion of the Governor General. This historical piece of legislation shows that it was always in the mind of the His Majesty to limit the strength of Council of Ministers, obviously, with the object of avoiding undue burden on the State revenue. When the framers of the Constitution enacted the Constitution of India, no such restriction was placed on the Council of Ministers in terms of Articles 131, 163 and 164 of the Constitution of India. By passage of time, with experience gained by the Parliamentarians of jumbo Council of Ministers putting immense pressure on the State revenue, the Parliament in its wisdom added Article 164(1A) to the Constitution of India by Constitution 91st Amendment Act, 2003 which came into effect from 1.1.2004. This provision specifically put an embargo on huge Council of Ministers and provided that the Council of Ministers in a State shall not exceed 15% of the total number of Members of Legislative Assembly of that State while further providing that number of Ministers including the Chief 17 Minister in a State shall not be less than 12. Second proviso to Article 164(1A) even mandated that wherever the total number of Ministers including the Chief Minister in the Council of Ministers exceeds the said 15%, or the number specified in first proviso, as the case may be, then, total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint. This proviso, thus, undoubtedly indicate the legislative intent that provisions of Article 164(1A) should be strictly adhered to and even the size of Council of Ministers in excess of the specified percentage or number should be brought in conformity to the Constitutional mandate. It may be noticed here that section 3 of the Bill which has introduced (1A) to the main Article 164 of the Constitution had originally proposed that the Council of Ministers should consist of number of Ministers not in excess of 10% of the total number of Members of the Constituent Assembly. However, Parliamentary Standing Committee on Home Affairs which examined the Bill which was presented to the Rajya Sabha on 5 th December, 2003 and laid before the Lok Sabha on 5 th December, 2003 had in its report under Clause 5.2.2 made the following recommendations: 18 “5.2.2 The committee recommends that the words `ten percent' in the third line and `seven' in the eighth line of page 2 of the Bill be substituted by the words `fifteen percent' and `twelve', respectively. The Committee also recommends, deletion of the words beginning with `or in case of a State' and ending with, both Houses of the Legislature of that State' in lines 5 and 6 of page 2.” 12. The Committee had discussed the size of Council of Ministers under Clause 3.1 and it was felt that the idea of limiting the size of Council of Ministers has been floated since pre- independence era and even the Committee on Defections in 1969 in its report expressed the view that such activity was effected significantly by the lure of the Ministership in the political defections, thus, limiting the size of Council of Ministers might not only act as a dampener on political defectors, but might offer the Prime Minister or the Chief Minister, as the case may be, a convenient escape-latch when faced with pressure which otherwise he or she may be unable to withstand. The National Commission to Review the Working of the Constitution (2002) had also deliberated the size of Council of Ministers and made following 19 recommendations: (ii) 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 two percent of the total strength of the Lower House.” “(i) The practice of having oversized Council of Ministers 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 ten percent of the total strength of the popular House of the legislature. 13. It was the accumulated effect of various recommendations that the Parliamentarians considered it appropriate to introduce this restriction in Article 164(1A) and in an unambiguous language expressed its mind for strict adherence to this provision. Synopsis of debates in either of the Houses also show that the amendment was introduced upon deliberations and with definite emphasis on mandating proper size of the Council of Ministers. The recommendations by National Commission to Review the Working of the Constitution about abnormally large Council of Ministers were also noticed in the Bill placed for consideration before the Parliament. The object and reasons stated in the Bill which sought to achieve the object of controlling the size 20 of Council of Ministers had referred to the 170 th Report of Law Commission of India on Rule of Electoral Laws, 1999 and Report by National Commission to Review the Working of the Constitution dated 31 st March, 2002. The Bill makes a reference to the demands that had been made from time to time in certain quarters for strengthening the anti defection laws emphasizing interalia the recommendations of the Commissions for penalization of defector for his action by debarring him from holding any public office or remunerative political post during the remaining term and putting a ceiling on the number of Ministers in the State or the relevant Government maximum to 10% of the total strength of the popular House of Legislature clarifying that the size of the Council of Ministers should not be more than 10% of the strength of House or Houses concerned whether unicameral or bicameral. Besides these objects and reasons, obviously, twin objects were sought to be achieved (i) to discourage defection in politics and (ii) to save public money. Thus, on clear analysis of the above legislative objects and reasons and opinion of expert bodies a dogmatic view may be taken that the Legislature intended to limit the size of Council of Ministers and ensure its strict implementation. 21 Parliamentary Secretary : History & Status 14. History shows that the post of `Parliamentary Secretaries' is not a new phenomenon. `Parliamentary Secretaries' were appointed by different political parties in power probably