The Imbroglio of the Position of
Parliamentary Secretaries vis-à-vis Office of Profit in National Capital
Territory of Delhi
Dr. Rajender Goyal[*]
The raging controversy concerning
appointment of Parliamentary Secretaries in National Capital Territory of Delhi
is a whole new ball game
PROLOGUE
The
contentious practice of appointment of Chief Parliamentary Secretaries and
Parliamentary Secretaries by certain state governments in the teeth of 91st
Amendment to the Constitution prescribing a ceiling of 15 percent of strength
of the House on the size of Council of Ministers remains a topic of unabated
political and media discourse. In National Capital Territory of Delhi (NCTD),
the Article 239AA puts the said cap at 10 percent. The vexed issue of
appointment of 21 Aam Aadmi Party (AAP) MLAs as Parliamentary Secretaries to
the Ministers of Government of National Capital Territory of Delhi (GNCTD) by
the Chief Minister Arvind Kejriwal of National Capital Territory of Delhi has upped
the ante. However, to club and equate the matter of appointment of Chief
Parliamentary Secretaries and Parliamentary Secretaries by other state
governments with the appointment of Parliamentary Secretaries by the
present government of NCTD is akin to
comparing apple with orange. In states like Himachal Pradesh, Goa, West Bengal,
Punjab, Haryana, Gujarat, Nagaland, Puducherry, Karnataka, Rajasthan and
Telangana etc the appointee enjoyed/enjoys the status of Cabinet Minister or
Minister of State with associated remuneration, perk and entitlement viz. salary,
allowance, luxury car with police escort vehicle, office in the secretariat
with staff, fully furnished government house and other facilities in tune with
conferred status/rank.[1]
Conversely, it is noteworthy that GNCTD order March 13, 2015 appointing the
members of Delhi Legislative Assembly named therein as Parliamentary
Secretaries to the Ministers, Government of NCTD states that “Parliamentary
Secretaries will not be eligible for any remuneration or any perks of any kind,
from the government. However, they may use government transport for official
purposes only and office space in the minister’s office would be provided to
them to facilitate their work” The said order was issued with the concurrence
of Hon’ble Speaker, Delhi Vidhan Sabha.
But
soon after the 21 AAP’s MLAs appointment as Parliamentary Secretaries, an NGO
namely Rashtriya Mukti Morcha[2]
challenged the constitutional tenability and propriety of such appointments in
the High Court of Delhi and the matter is still pending for adjudication. On
the close heels of this, a Delhi lawyer Prashant Patel invoked the jurisdiction
of Section 15 of the Government of National Capital Territory of Delhi Act,
1991 (it is worded largely on the lines of the provisions contained in Articles
102/103 and 191/192 of the Constitution relating to disqualification for
membership of either House of Parliament or either House of Legislature of
State, respectively) and filed a petition before the President of India Pranab
Mukherjee for disqualification of said
21 MLAs for allegedly holding “offices of profit” of Parliamentary Secretaries.
The Hon’ble President has referred the petition for the opinion of the Election
Commission of India and latter is now seized of the matter. The President is legally
obliged to take a final decision in accordance with the opinion rendered by
Election Commission. As reported in the media, all the 21 MLAs (Parliamentary
Secretaries) have apprised the Election Commission that they are not holding
any “offices of profit” because neither any pecuniary benefit is receivable by them
from GNCTD nor they are in fact provided with any remuneration, allowances,
house, vehicle etc by GNCTD in lieu of their performing duties as Parliamentary
Secretaries.
The
moot question here is whether Parliamentary Secretaries appointed by the
present Chief Minister- GNCTD are holding any “offices of profit” entailing
their disqualification for being MLAs under the law? If so, whether the Legislative Assembly of
NCTD is competent to pass a law to remove the disqualification with
retrospective effect?
1.
Meaning
of Office of Profit and Power of Legislature to Exempt the Office(s) of Profit
Retrospectively
The
concept of “Office of Profit” originated in the House of Commons in England.
The history of British House of Commons is the history of conflicts with the
crown. The king, in his efforts to undermine the House of Commons, used to
offer positions of executive nature with pecuniary benefits to its members and
buy their loyalty. This practice kept the members out of the House most of the
time and thus there arose a conflict between their duty and their personal
interest. The continued absence of a large number of members because of their
preoccupation with executive functions weakened the House of Commons in course
of time and therefore it passed a law prohibiting its members from accepting
any office from the Crown which gave them any pecuniary benefits. It was
provided that any such office which a member may accept will disqualify him. In
essence, the law of office of profit was introduced to end the conflict between
the duty of a member of the legislature towards the House and public and his
personal interest.[3]
1.1
Office of Profit
The term “office of
profit” is not defined in the Constitution or in any other relevant statute and
is left for the judiciary to interpret its meaning.
In Kanta Kathuria
vs. Manak Chand Surana[4],
the Supreme Court held that an “office has an existence independent from the
person who filled it, which went on and was filled in succession by successive
holders”. The Supreme Court in 1954 in the case of Ravanna Subanna vs. G.S.
Kaggeerappa[5] held
that the remuneration which the person gets while holding the office to enable
him to carry out day to day expenses (i.e. compensatory in nature) should not be considered as accruing any
profit to holder. The
Supreme Court in Shibu Soren vs. Dayanand Sahay[6]
held that what needs to be found out is whether the amount of money receivable
by the person concerned in connection with the office he holds, gives to him
some “pecuniary gain”, other than as “compensation” to defray his out-of-pocket
expenses, which may have the possibility to bring that person under the
influence of the executive, which is conferring that benefit on him.
The Supreme Court in
2006 in the case of Jaya Bacchan vs. Union of India[7]
held thus: “An office of profit is an office which is capable of yielding a
profit or pecuniary gain. For deciding the question as to whether one is
holding an office of profit or not, what is relevant is whether the office is
capable of yielding a profit or pecuniary gain and not whether the person
actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in
connection with the office then it becomes an office of profit, irrespective of
whether such pecuniary gain is actually received or not.” In the catenae of
other cases as well the Supreme Court has laid down the conditions for
ascertaining whether an office is an “office of profit” viz. the government
makes the appointment; the government has the right to remove or dismiss the
holder; the government pays the remuneration; the holder performs the functions
for the government; and the government exercises control over the performance
of those functions.[8]
In U.C. Raman v. P.T.A Rahim[9], the
Supreme Court clearly stressed that “this court has given categorical
clarification on more than one occasion that an Office of Profit is an Office
which is capable of yielding a profit or pecuniary gain”. It has also been made
clear by the court that compensatory allowances are meant to meet the
out-of-pocket expenses and hence do not constitute any profit. The Court
categorically stated that the word ‘profit’ has always been treated equivalent
to or a substitute for the term “pecuniary gains”. It becomes thus clear that
an office to which no salary or remuneration is attached or which is not
capable of yielding a profit is not an office of profit.
1.1.1 The Office of Profit and 21 AAP MLAs
appointed as Parliamentary Secretaries
The
said GNCTD order of March 13, 2015 bears out that that no profit/pecuniary gain
is receivable by 21 AAP MLAs in connection with their positions of
Parliamentary Secretaries. Hence, in view of above discussion, it may be
averred that they are not holding any offices of profit so as to incur any
disqualification under the law.[10]
1.2
Power of Legislature to Exempt
the Office(s) of Profit Retrospectively
For
the sake of argument, even assuming that said 21 AAP MLAs are holding of
“offices of profit” of Parliamentary Secretaries, it is germane here to mention
that the Legislative Assembly of Delhi in 1997, enacted Delhi Members of
Legislative Assembly (Removal of Disqualification) Act, 1997 in order to exempt
certain offices from being disqualified for being chosen as, or for being, a
member of the Legislative Assembly of NCTD. Certain offices prescribed in the
Schedule appended to that Act of 1997 got exempted from disqualification. In
the year 2006 an interesting development took place in NCTD while Sheila Dixit
was leading the GNCTD. The then BJP Legislator Vijay Jolly filed a petition
with the then President A.P.J. Abdul Kalam seeking disqualification of 18
Congress MLAs for holding “offices of profit”. Subsequently, the matter moved
to Election Commission and notice was issued to concerned 18 MLAs. In the
meanwhile, Delhi Legislative Assembly passed the Delhi Members of Legislative
Assembly (Removal of Disqualification) (Amendment) Bill, 2006 with
retrospective effect from September 9, 1997 exempting 14 posts/offices[11]
from the purview of “office of profit” and the then President of India accorded
assent to said Bill. Most importantly in
present context, by virtue of said amendment of 2006, the entry 7 inserted in
the Schedule of the Act of 1997 specifically exempted the office of
Parliamentary Secretary to the Chief Minister. It may be noted that BJP Chief
Minister Sahab Singh Verma in 1997 appointed one Parliamentary Secretary. Then
Congress Chief Minister Sheila Dixit also appointed one Parliamentary Secretary
and she subsequently increased the number of Parliamentary Secretaries to 3 in
the year 2009.
In
the wake of Prashant Patel’s petition before President of India, possibly to
avert any disqualification of 21 AAP MLAs appointed as Parliamentary
Secretaries to the ministers of GNCTD, by way of abundant caution ( ex abundanti cautela), the Delhi
Legislative Assembly passed the Delhi
Members of Legislative Assembly (Removal of Disqualification) (Amendment) Bill,
2015[12].
Consequently, it amended the entry 7 of the Schedule of the Act to the effect
that “Parliamentary Secretaries to Ministers were also exempted from
disqualification with retrospective effect from February 14, 2015 besides the
Parliamentary Secretary to Chief Minister (Although none of the Parliamentary
Secretaries is attached to current Chief Minister of NCTD).[13]
The said Bill passed by Legislative Assembly of NCTD was sent to the Lt
Governor for further necessary action (i.e. approval of Central Government and
assent of the President).
1.2.1 The Supreme Court on Power of
Legislature to Exempt the Office(s) of Profit Retrospectively
However,
some people are raising a cavil that no such LAW can be passed with retrospective
effect. However, this issue is not res integra.
The Delhi Members of Legislative Assembly ((Removal of Disqualification)
(Amendment) Bill, 2006 had exempted 14 posts/offices from the purview of “offices
of profit” with retrospective effect from 9 September 1997. Parliament (Prevention of Disqualification)
Amendment Act, 2006 had excluded 45 posts/offices held by Members of Parliament
from the operation of Article 102 with retrospective effect from the year 1959.[14]
BJP and Samajwadi Party dispensations in Chhattisgarh, Jharkhand and Uttar
Pradesh have passed similar laws in the past.
The Apex Court in 2009 in the case of Consumer Education and Research
Society vs Union of India[15]
held thus “when the Amending Act ‘retrospectively removed the disqualification
with regard to certain enumerated offices, any member who was holding such
office of profit, was freed from the disqualification retrospectively’. The
Court further said that the power of Parliament to enact a law
declaring with retrospective effect that certain offices of profit will not
disqualify the holder from being chosen as, and for being a Member of
Parliament has already been upheld by this Court in the 1969 in the case of Srimati
Kanta Kathuria v. Manak Chand Surana[16].
The Court also intoned that there is no doubt that the disqualification, when
declared by the President will become operative from the date the Member
accepted the “office of profit”. It is
also not in doubt that the vacation of the seat is consequential. However, the
question is whether the seat of the Member becomes vacant without anything more
when a person accepts an “office of profit”? The obvious answer is ‘no’. While
a disqualification results in the vacation of the seat of a Member, the vacancy
occurs only when the President decides and declares the disqualification under
Article 103”.
2.
EPILOGUE
However, the Hon’ble President
Pranab Mukherjee on 13/06/2016 rejected a bill passed by the Delhi assembly on
24/06/2015 [i.e. an amendment to the Delhi Members of Legislative
Assembly (Removal of Disqualification) Act, 1997] seeking to exempt 21 AAP MLAs appointed as
parliamentary secretaries from the purview of `office of profit' criteria.[17] Elaborating on the
President's grounds for rejection of the bill, a home ministry official said
the law was clear that what constitutes an “office of profit“ and what does not
must be pre-defined. “Applying exemptions with retrospective effect is
unconstitutional,” the official said. Rashtrapati Bhawan sources said the Union
Home and Law Ministries told the President that the Delhi Govt Bill- allowing
the MLA’s appointment as parliamentary secretaries and exempting them from
office of profit regulation retrospectively- violated existing laws.[18]
As
of the date, none of the 21 Parliamentary Secretaries has been declared to be
disqualified by the President for holding “office of profit”. It would have
been in the fitness of things for the President of India (in fact Central Government since the President acts on
the binding aid and advise of the Central Government in such matters) to
accord assent to said Amending Bill of 2015 to save the said 21 elected MLAs
from impending disqualification (assuming that they are holding “offices of
profit”) as has been done in the past in the similar circumstances. It is a
matter of survival for 21 AAP MLAs vis-à-vis saving of their current terms as
MLAs. It may be apt to quote from the recent Uttarakhand High Court Judgment[19]
authored by Justice U.C. Dhyani that “to err is human. Nobody is infallible.
Cold calculations are normally avoided in intangibles. Life, like law, is never
static. Both are dynamic concepts”.
PS - 1 (September 8, 2016):
A division bench of Chief Justice G
Rohini and Justice Sangita Dhingra Sehgal set aside the March 2015
administrative order after the Delhi government conceded that it had neither
sought the LG's concurrence nor communicated its decision to him. Following the
Delhi government's submission, THE BENCH REFUSED TO GO INTO ANY OTHER GROUND
RAISED IN THE PIL CHALLENGING THE APPOINTMENTS. It said the “issue is squarely
covered“ by its ruling of August 4 where it interpreted Article 239AA of the
Constitution to hold that the LG was the administrative head of the Union
territory of Delhi and his concurrence was “mandatory“ in administrative
decisions.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 4714/2015 & Crl.M.A.No.8526/2015
RASHTRIYA MUKTI MORCHA ..... Petitioner
Through Mr. Vijay Chaudhary, Adv.
Versus
GOVT. OF NCT OF DELHI & ORS ..... Respondents
Through Mr. Sudhir Nandrajog, Sr. Adv. with Ms. Prabhsahay Kaur, Adv. for R-1 to R-3. Mr. Sanjay Jain, Sr. Adv. with Mr. Jasmeet Singh, CGSC, Mr. Srivats, Aastha Sharma, Mr. Sarfaraz Ahmad, Ms. Ruchi Jain and Mr. Rajul Jain, Advs. for UOI.
CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
O R D E R 08.09.2016
1. This petition by way of Public Interest Litigation has been filed challenging the order of the Government of Delhi dated 13.03.2015 appointing the Members of Delhi Legislative Assembly named therein as Parliamentary Secretaries to the Ministers, Government of NCT of Delhi.
2. One of the grounds of challenge is that the said order was passed without communicating the decision to the Lieutenant Governor for his views/concurrence as required under Article 239AA of the Constitution of India.
3. Having considered the very same issue in W.P.(C) No.5888/2015 and batch titled Government of NCT of Delhi v. Union of India & Ors., by judgment dated 04.08.2016 this Court held thatW.P.(C) No.4714/2015 Page 1 of 2 "It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to clause (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993."
4. The specific plea of the petitioner that the impugned order dated 13.03.2015 was passed without communicating the decision to the Lieutenant Governor for his views/concurrence has not been disputed by the learned counsels appearing for the respondents.
5. Therefore, we find force in the submission of the learned counsel for the petitioner that the issue is squarely covered by the decision in W.P.(C) No.5888/2015 and batch titled Government of NCT of Delhi v. Union of India & Ors. Accordingly, without going into the other contentions raised in the writ petition, the impugned order dated 13.03.2015 is hereby set aside. The writ petition is accordingly allowed. No costs.
CHIEF JUSTICE
SANGITA DHINGRA SEHGAL, J.
SEPTEMBER 08, 2016/VLD W.P.(C) No.4714/2015 Page 2 of 2
(NOTE: Rajasthan High Court in Hoti Lal v. Raj Bahadur AIR 1959 Raj 227 stated that
even if the appointment was irregular, that would not save a person from the disqualification under Article 102/191)
W.P.(C) 4714/2015 & Crl.M.A.No.8526/2015
RASHTRIYA MUKTI MORCHA ..... Petitioner
Through Mr. Vijay Chaudhary, Adv.
Versus
GOVT. OF NCT OF DELHI & ORS ..... Respondents
Through Mr. Sudhir Nandrajog, Sr. Adv. with Ms. Prabhsahay Kaur, Adv. for R-1 to R-3. Mr. Sanjay Jain, Sr. Adv. with Mr. Jasmeet Singh, CGSC, Mr. Srivats, Aastha Sharma, Mr. Sarfaraz Ahmad, Ms. Ruchi Jain and Mr. Rajul Jain, Advs. for UOI.
CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
O R D E R 08.09.2016
1. This petition by way of Public Interest Litigation has been filed challenging the order of the Government of Delhi dated 13.03.2015 appointing the Members of Delhi Legislative Assembly named therein as Parliamentary Secretaries to the Ministers, Government of NCT of Delhi.
2. One of the grounds of challenge is that the said order was passed without communicating the decision to the Lieutenant Governor for his views/concurrence as required under Article 239AA of the Constitution of India.
3. Having considered the very same issue in W.P.(C) No.5888/2015 and batch titled Government of NCT of Delhi v. Union of India & Ors., by judgment dated 04.08.2016 this Court held thatW.P.(C) No.4714/2015 Page 1 of 2 "It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to clause (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993."
4. The specific plea of the petitioner that the impugned order dated 13.03.2015 was passed without communicating the decision to the Lieutenant Governor for his views/concurrence has not been disputed by the learned counsels appearing for the respondents.
5. Therefore, we find force in the submission of the learned counsel for the petitioner that the issue is squarely covered by the decision in W.P.(C) No.5888/2015 and batch titled Government of NCT of Delhi v. Union of India & Ors. Accordingly, without going into the other contentions raised in the writ petition, the impugned order dated 13.03.2015 is hereby set aside. The writ petition is accordingly allowed. No costs.
CHIEF JUSTICE
SANGITA DHINGRA SEHGAL, J.
SEPTEMBER 08, 2016/VLD W.P.(C) No.4714/2015 Page 2 of 2
(NOTE: Rajasthan High Court in Hoti Lal v. Raj Bahadur AIR 1959 Raj 227 stated that
even if the appointment was irregular, that would not save a person from the disqualification under Article 102/191)
PS- 2 (June 25, 2017):
"A bare perusal
of above order of the Government of Delhi (13/03/2015) shows that by the said
order the respondents were appointed as Parliamentary Secretaries to the
Ministers of the Government of Delhi. There is no mention in that order anywhere
at all that by this impugned order the Government of Delhi created any posts of
Parliamentary Secretaries as well. The order only speaks about the appointment
of the respondents as Parliamentary Secretaries. This pre-supposes that the
posts of Parliamentary Secretaries were either already in existence or created
separately by the Government, to which these appointments were made by the
Government on 13th March, 2015. The Commission does not find anything in the
order dated 8th September, 2016 of the Hon'ble Delhi High Court that the Court
set aside not only the appointment of the respondents as Parliamentary
Secretaries, but also set aside the creation of those posts of Parliamentary Secretaries.
The contention of the respondents that by virtue of the Hon'ble Delhi High
Court's order dated 8th September 2016, the posts of Parliamentary Secretaries
ceased to exist ab initio from 13th March, 2015, thus holds no water. That by the
said order dated 08th September, 2016, the Hon'ble Delhi High Court only set
aside the appointment of the respondents as Parliamentary Secretaries is
manifestly and abundantly clear and admits of no other interpretation. If the
respondents were to succeed in their contention that the Hon'ble High Court set
aside the creation of posts of Parliamentary Secretaries as well, the burden of
proving that fact lay on them, which they have failed to discharge. The petitioner
is right in his contention that the Commission cannot add to or vary any words
in the order of the Hon'ble Delhi High Court, as is sought to be done by the
respondents. Therefore, the only inference that can be validly drawn from the
order dated 08th September 2016 of the Hon'ble Delhi High Court is that the High
Court only set aside the appointment of respondents as Parliamentary
Secretaries vide government's order dated 13th March 2015, and not the post of
Parliamentary Secretaries".
Detailed order may be accessed at:
http://eci.nic.in/eci_main1/current/Order_24062017.pdf
PS- 3 (July 2017):
AAP MLAs moved the high court seeking an
end to the proceedings before the EC. Writ Petition
(Civil) Nos. 6632, 6633, and 6635 – 6638 of 2017. However, no Stay Order
has been passed in the same till date.
The Election Commission of India
(ECI) is learnt to have recommended to President Ram Nath Kovind that 20 Aam
Aadmi Party MLAs be disqualified on the office-of-profit charge. The President
is bound by the Commission’s recommendation. The
Commission, however, refused to comment on the issue, stating that the matter
was sub judice. (
PS- 5 (19th January 2017):
Delhi HC Refuses Interim Protection For 20
AAP MLA’s Disqualified By Election Commission
The Election Commission of India (ECI) on Friday sent a recommendation to the President for disqualification of 20 Aam Aadmi Party MLAs for holding office of profit which sent them scurrying for interim protection from the Delhi High Court which also refused to grant relief.
The Election Commission of India (ECI) on Friday sent a recommendation to the President for disqualification of 20 Aam Aadmi Party MLAs for holding office of profit which sent them scurrying for interim protection from the Delhi High Court which also refused to grant relief.
Next Hearing : 22nd JANUARY 2018 at 4.00 PM ( WP (C) 6633, 6635, 6636, 6646, 6718, 7380/2018 in Delhi High Court)
Read more at: http://www.livelaw.in/delhi-hc-refuses-interim-protection-20-aap-mlas-disqualified-election-commission/
PS-6 ( 21 January 2018):
PS-7 (22 January 2018):
In Delhi HC, AAP MLAs withdrew their applications seeking stay on ECI recommendations over their disqualification to the President of India in the Office of Profit matter as their applications have now become infructuous after Presidential assent. Main petition ( WP (C) 6633, 6635, 6636, 6646, 6718, 7380/2017) to be heard on 20th March 2018.
PS-8 (24 January 2018):
In a fresh plea [WP(C) 750, 751, 752/2018]before the Delhi High Court, the Aam Aadmi Party MLAs on Tuesday challenged their disqualification which has been approved by the President on the recommendation of the Election Commission of India. Delhi HC has summoned all records of Election Commission of India concerning "Office of Profit" matter of 20 AAP MLAs. Court further made it clear that ECI must not take any coercive steps (announcing/holding of by-elections etc) till the final disposal of the matter. NDOH 29.01.18.
Read more at: http://www.livelaw.in/delhi-hc-refuses-interim-protection-20-aap-mlas-disqualified-election-commission/
PS-6 ( 21 January 2018):
Office Of Profit Row: President Approves
Disqualification Of 20 AAP MLAs By ECI
In his order, the President has ruled, “Now, therefore, having considered the matter in the light of the opinion expressed by the Election Commission of India, I, Ram Nath Kovind, President of India, in exercise of the powers conferred on me under section 15(4) of the Government of National Capital Territory of Delhi Act, 1991, do hereby hold that the aforesaid 20 Members of Delhi Legislative Assembly stand disqualified for being members of the said Assembly.
In his order, the President has ruled, “Now, therefore, having considered the matter in the light of the opinion expressed by the Election Commission of India, I, Ram Nath Kovind, President of India, in exercise of the powers conferred on me under section 15(4) of the Government of National Capital Territory of Delhi Act, 1991, do hereby hold that the aforesaid 20 Members of Delhi Legislative Assembly stand disqualified for being members of the said Assembly.
The relevant extracts from ECI’s
order are reproduced as below:
96.
The appointment order dated 13.03.2015 has clearly stipulated two entitlements
of Parliamentary Secretaries, i.e. use of Office Space in Minister’s office and
transportation for official purposes. The GNCTD has submitted that these
benefits have been provided only to the Parliamentary Secretaries and not to
the MLAs. Moreover the GNCTD has also submitted that there was no provision for
segregation of expenditure made on Parliamentary Secretaries and the Ministers.
97.
The GNCTD has stated vide reply
dated 20.09.2016 as under:
“a. The Department of Law has stated that the office of Parliamentary
Secretary has neither been defined nor there is any provision under GNCTD Act,
1991 and the Transaction of Business Rules of GNCTD.
c. In the Staff Car Rules, NB below Rule 44 states as follows: “The
expression “Minister” used in these Rules includes Ministers of all ranks,
Deputy Ministers and Parliamentary Secretaries. If any of the provisions of
these Rules in so far as they relate to Ministers and Deputy Ministers, are
repugnant to any of the corresponding provisions of the Ministers (Allowances,
Medical Treatment and Other Privileges) Rules, 1957, the latter provisions will
alone be applicable” as quoted from Swamy’s Compilation of Staff Car Rules as
of March, 2015”.
Moreover,
the Respondents were appointed as Parliamentary Secretaries vide appointment
order dated 13.03.2015 and even in this appointment order there is no
definition of their roles, responsibilities, or duties etc. and all it states
is that they shall be attached with individual Ministers, have no salary and
shall be entitled to working space in the office of the Minister concerned and
official car. The Petitioner has in this context pointed out the fact that the
appointment order has made the provision for official car without prescribing
any single duty for these Parliamentary Secretaries and while official car is a
benefit per se, the provision of it without assignment of any work is in
the nature of undue benefit and it further establishes the intent to accord
benefits to the Parliamentary Secretaries. The Hon’ble Supreme Court of India
in the case of Jaya Bachchan v. Union of India (supra) had
considered the provision of the facility of ‘chauffer driven car at state
expense’ as a key ingredient making an office one of profit in order to attract
the requisite disqualification and therefore it is correct to note that the
Office space and chauffer driven car/ transport were receivable material gains
to which the Respondent MLAs were entitled to after appointment to the office
of Parliamentary Secretary.
98.
The GNCTD has also stated that vide Order No. 16(50)/2014-15/LAS/CT/5437-5443
dated 23.09.2015 that the Legislative Assembly Secretariat vide Letter
No. 16(87/2016/LAS/CT/7285) dated 12.09.2016 has provided copy of the note
dated 24.09.2015 signed by Shri Ajay Rawal, Secretary to Hon’ble Speaker
wherein it has been stated that the Hon’ble Speaker has directed that the order
dated 23.09.2015 regarding allotment of rooms to Parliamentary Secretaries to
Ministers be kept in abeyance till further orders.
99. The GNCTD
has also provided the following details in this respect:
a) “Requisition from Secretary to Minister (Transport, Development,
GAD, Employment & Labour) dt. 26.03.2015 stating that ‘it has been desired
by the Hon’ble Minister to make office space (cabins) for the following
Parliamentary Secretaries to the Minister (Transport, Development, GAD,
Employment & Labour) in the Hall of ‘A’ Wing, 7th Level to facilitate their
work’
1. Sh. Sanjeev Jha, Parliamentary Secretary (Transport)
2. Ms. Sarita Singh, Parliamentary Secretary (Employment)
3. Sh. Naresh Yadav, Parliamentary Secretary (Labour)
4. Sh. Jarnail Singh, Parliamentary Secretary (Development)
b) Requisition dated 13.04.2015 which states that consequent upon order
of OSD to Minister (Transport & GAD) in the office of the Minister of
Transport, GAD, Development, Labour & Employment, kindly arrange to provide
one officer’s table along with chair, KTS, intercom, computer system with
internet and visiting chairs in the cabin in hall premises at 7th Level, A – Wing,
immediately.
c) Requisition dt. 20.04.2015 which states that in
continuation of earlier request dt. 26.03.2015, kindly make two more cabins for
the O/o Minister (GAD, Development, Employment & Labour etc.) in the Hall
of A-Wing, 7th Level at the earliest.
d) Requisition dt. 28.04.2015 which states that one
sofa set alongwith centre table, officer table, officer chair, visiting chairs,
computer with internet facility, intercom and vertical blind may kindly be
provided in the third cabin in the hall premises at 7th Level, A – Wing, for
the official use in the office of the Minister of Transport, GAD, Development,
Labour & Employment. This may kindly be treated as ‘Most Urgent’.
e) Requisition dt. 29.04.2015 which states that
four normal size office tables with chairs may kindlybe provided in the cabins
in the hall premises at 7th Level, A – Wing, for the official use in the office
of the Minister of Transport, GAD, Development, Labour & Employment at the
earliest.
f) All the above requisitions were forwarded by GAD
to the AE(Civil), PWD looking after the civil works in Delhi Secretariat
building for further needful.
g) Further, information as received from PWD also
shows that 4 requisitions (dt. 26.03.2015,
13.04.2015, 29.04.2015 and 28.04.2015) as stated in
sub-para (a) to (e) above were received in
respect of creation of office space of 40 sqm at 7th
Floor, Delhi Sectt. Building. The PWD has
informed vide their letter dated 12.09.2016 that
office cabins were created on 20.05.2015 and
were fit for occupation on 20.05.2015. It has also
been stated by PWD that actual date of handing over these cabins/officespace
was 25.05.2015 and a total amount of Rs. 3,73,871/- was incurred by PWD which
comprises Rs. 2,22,500/- on Civil & Electrical Work and Rs. 1,51,371/-
on furniture on these office cabins under Budgetary
Major Head MH 4059”. [Emphasis Supplied]
100. The GNCTD
has further submitted that the Public Works Department has informed in its
reply dated 14.09.2016 that a requisition letter No. 16 (26)/2015-16/LAS/CT/865
dated 15.05.2015 was received from Dy. Secretary CT, Delhi Legislative Assembly
Secretariat for providing 21 Executive Table, 21 Executive Chair, 136 visitors chairs
for the 21 Parliamentary Secretaries for which Rs. 11,75,828 was spent by PWD.
In this regard PWD has further informed that Delhi Legislative Assembly
Secretariat vide its letter dated 16.06.2015 had conveyed approval of
Rs.13,26,300/- for this purpose.
101.
It is also pertinent to recall at this juncture that the order of appointment
of the Respondents had clearly noted that the Parliamentary Secretaries shall
be entitled to use office space in the offices of the Ministers with whom they
are attached. However, despite this position stipulated in the appointment
order, separate Office Spaces, apart from the constituency office, were also
provided to the Respondent MLAs and at many instances more than one office
space was provided to the Parliamentary Secretaries and liberal grants were
made for their renovations. This clearly falls under the definition of ‘profit’.
102. Details
about offices allotted to the Parliamentary Secretaries in addition to their
constituency offices (as per the
information
furnished by GNCTD) is as under:
S. No. NAME OF MLA, OFFICE ALLOTTED ORDER DETAILS
1. Sh. Adarsh Shastri
NA NA
2. Ms. Alka Lamba
2 Office Rooms in Old CPO Building, Kashmiri Gate, Delhi. Office Provided by
Sindhi Academy under Department of Art, Culture & Language. Renovation work
done by PWD. Letter No. 2 (39) 5A/16/8470 dated 13.09.2016 of Secretary, Sindhi
Academy.
3. Sh. Anil Kumar
Bajpai NA NA
4.
Sh. Avtar Singh Office space at O/o Executive Engineer, South East (Building),
PWD Hauz Khas, New Delhi PWD, vide letter dated 17/06/2016 Office Space at
Ground Floor, Labour Welfare Centre, Giri Nagar, Kalkaji , New Delhi Labour
Department, vide letter dated 14.09.2016
5.
Sh. Jarnail Singh (Tilak Nagar) Hall of ‘A’ Wing, 7th Level, Delhi
Secretariat. Requisition from Secretary to Minister (Transport, Development,
GAD, Employment & Labour) dt. 26.03.2015 Training cum Production Centre,
Ashok Nagar Social Welfare Deptt.
6. Sh. Kailash Gahlot
NA NA
7. Sh. Madan Lal
NA NA
8. Sh. Manoj Kumar
NA NA
9. Sh. Naresh Yadav
Hall of ‘A’ Wing, 7th Level, Delhi Secretariat. Requisition from
Secretary to Minister (Transport, Development, GAD, Employment & Labour)
dt. 26.03.2015.
10. Sh. Nitin
Tyagi NA NA
11. Sh. Praveen Kumar
NA NA
12. Sh. Rajesh Gupta
NA NA
13.
Sh. Rajesh Rishi C2, Jal Board Office, Janakpuri, C2 Fire Station Janakpuri,
under the Dabri flyover. Delhi Jal Board, vide letter No. 5684 dated 15/01/2016.
&14/09/2015. Room No. 1& 2 at JE (Water/Sewer) store at Fish Market,
Uttam Nagar, Near Metro Station , Delhi Delhi Jal Board, vide office letter No.
466 dated 10.05.2016.
14.
Sh. Sanjeev Jha Hall of ‘A’ Wing, 7th Level, Delhi Secretariat. Requisition
from Secretary to Minister (Transport, Development, GAD, Employment &
Labour) dt. 26.03.2015.
15. Ms. Sarita Singh
Hall of ‘A’ Wing, 7th Level, Delhi Secretariat. Requisition from
Secretary to Minister (Transport, Development, GAD, Employment & Labour)
dt. 26.03.2015
16. Sh. Sharad Kumar
Chauhan NA NA
17. Sh. Shiv Charan
Goel NA NA
18. Sh. Som Dutt
NA NA
19. Sh. Sukhvir Singh
Dalal NA NA
20. Sh. Vijender
Garg Vijay Office space at PWD Office Road Sub Division at Inder Puri.PWD, vide
letter dated 21.07.2015
103.
From the analysis presented above it is clear that the office of Parliamentary
Secretary had adduced benefits which cannot be taken out of the purview of ‘profit’
and therefore it can be concluded that the office of Parliamentary Secretary
yielded profit and had the potential of yielding profits to the incumbents of
that office.
106.
The reply received from the GNCTD has noted that the Parliamentary Secretaries
performed duties as assigned by the Minister concerned and attended meetings in
the offices of the Ministers with whom they were attached. It cannot be said
that these meetings were attended in only advisory capacity when the meetings
were chaired by these Parliamentary Secretaries and important executive
decisions were taken in them. From perusal of the reply received from the
GNCTD, it appears that the Petitioner has correctly pointed out that the
Parliamentary Secretaries have attended and chaired meetings where policy
framing or executive decisions were taken and in many cases the Committee
meetings chaired by Parliamentary Secretaries ‘decided’ and not just
recommended on the subject under consideration. The Parliamentary Secretaries
have conducted inspections and gave oral instruction during such inspections
which have been mentioned in the inspection reports. Moreover, the files of meetings
were often marked to the Parliamentary Secretaries to the Ministers for
information and necessary action.
108.
The facts and circumstances discussed thus far make it abundantly clear that
the office of parliamentary secretary not only has executive nature of
functions but was part of the executive per se.
122.
The objective behind incorporating a disqualification for holding an office of
profit under the Government is not to prevent the representatives of the people
from earning profit by their private ventures but to prevent a conflict of
interest in their functioning as members of the legislature and therefore undue
importance on the evidence of profit and actual potential of pecuniary benefits
is capable of rendering these Constitutional provisions toothless and pale. The
object sought to be achieved by these provisions is a Legislature whose members
are free from the vice of conflict of interest and the disqualification
provision and the requirements for their implementation ought to be read and
interpreted in a manner so as to fulfil this objective. In cases where the
office is clearly of executive nature and commands authority over executive functionaries
and is of high social respect and dignity – there is a clear case of conflict
of interest and if such an office is not held to be an office of profit then such
interpretation is creating an absurdity in law which is not only rendering the
Constitutional provisions meaningless but is also negating the vision of
constitutionalism deeply engrained in the body of our laws.
124.
The question as to whether the office of the Parliamentary Secretary was an
office of profit or not is not a question that is concerned simply and only
with the potentiality of profit of the office as any office that has the effect
of affecting the independence of the MLA and jeopardising his ability to
perform his duties towards the People or the House or both shall be called as
an office of profit. The office here is in the nature of an executive office
and by occupying the same these MLAs had become part of the executive. The
appointment of the Respondent MLAs as Parliamentary Secretaries by the GNCTD
bypasses and frustrates the objective sought to be achieved by Section 15(1)(a)
of the GNCTD Act, 1991 and is also against the principle of legislative oversight
of the Government which is the basic tenet of Parliamentary form of Democracy.
125.
At this stage it is relevant to look back at the criteria adopted by the Joint
Parliamentary Committee on Offices of Profit (Sixteenth Lok Sabha) to test
whether an office is an office of profit or not as noted in paragraph number 76
which are as under:
“(i) Whether the holder draws any remuneration,
like sitting fee, honorarium, salary, etc. i.e. any remuneration other than the
'compensatory allowance’ as defined in Section 2(a) of the Parliament
(Prevention of Disqualification) Act, 1959; (The Principle thus is that if a member
draws not more than what is required to cover the actual out of Pocket expenses
and does not give him pecuniary benefit, it will not act as a disqualification).
(ii) Whether the body in which an office is held,
exercises executive, legislative or judicial powers or confers powers of
disbursement of funds, allotment of lands, issue of licenses, etc., or gives
powers of appointment, grant of scholarships, etc; and
(iii) Whether the body in which an office is held
enables the holder to wield influence or power by way of patronage. If reply to
any of the above criteria is in affirmative then the office in question will
entail disqualification”. [Emphasis supplied]
126.
The first test of pecuniary gain and the second test of executive nature of
office as noted and relied upon by the Joint Parliamentary Committee have been
analyzed above under issue III and IV respectively. It is pertinent to note
that the above noted criteria of the
test relied upon by the Joint Parliamentary Committee operate singularly and
even if only one of them is satisfied it is enough to hold such an office as an
office of profit.
127.
The third test in the criteria noted above is of great significance in the
present case. The office of Parliamentary Secretary allowed the incumbents to
participate in high level meetings of the Government and to even Chair those
meetings. The Parliamentary Secretaries were allotted office space in the
Legislative Assembly Secretariat and in many cases even elsewhere and were
allotted official transportation. These Parliamentary Secretaries were to
assist the concerned Minister in the discharge of his functions and the actual
delegation of work or authority was left to the discretion of the Minister.
These Parliamentary Secretaries had full time access to the Ministers and
ministerial files and notings and this access enabled them to wield influence
and power by way of patronage.
131.
The totality of the facts and circumstances viewed in the light of the law as
contained in the Constitution of India, the GNCTD Act, 1991 and the Judicial
precedents cited above, lead to this inference that the office of Parliamentary
Secretary upon which the following 20 MLAs were appointed vide GNCTD
Order dated 13.03.2015 is an office of profit held under the Government and
therefore this Commission hereby opines that the following MLAs are liable to
be disqualified under Section 15(1)(a) of the GNCTD Act:………….
Notification dated 21 January 2018 with Presidential order dated 20th January 2018 and ECI's opinion dated 19th January 2018 may be accessed at:
http://www.livelaw.in/office-profit-row-president-approves-disqualification-20-aap-mlas-eci-read-notification/PS-7 (22 January 2018):
In Delhi HC, AAP MLAs withdrew their applications seeking stay on ECI recommendations over their disqualification to the President of India in the Office of Profit matter as their applications have now become infructuous after Presidential assent. Main petition ( WP (C) 6633, 6635, 6636, 6646, 6718, 7380/2017) to be heard on 20th March 2018.
PS-8 (24 January 2018):
In a fresh plea [WP(C) 750, 751, 752/2018]before the Delhi High Court, the Aam Aadmi Party MLAs on Tuesday challenged their disqualification which has been approved by the President on the recommendation of the Election Commission of India. Delhi HC has summoned all records of Election Commission of India concerning "Office of Profit" matter of 20 AAP MLAs. Court further made it clear that ECI must not take any coercive steps (announcing/holding of by-elections etc) till the final disposal of the matter. NDOH 29.01.18.
[1] . The
Himachal Pradesh High Court in the case of
Citizen Rights Protection Forum vs Union Of India and Ors
(decided on 18 August, 2005) held the appointments of Chief Parliament
Secretaries/Parliamentary Secretaries unconstitutional. Later on, the Supreme
Court stayed the High Court verdict and matter is still pending before it. Now,
the Congress government in Himachal Pradesh has nine Chief Parliamentary
Secretaries. The Bombay High Court in the case of Aires Rodrigues vs State of Goa (decided on January
22, 2009) also ruled the holders to the post of PSs as usurpers of public
office since their appointments were not anchored in any constitutional or
legal provision and they were appointed by person(s) not vested with the power
to do so. The Calcutta High Court in the case of Vishak Bhattacharya
vs State of West Bengal (decided
on June 1, 2015) struck down a law enacted by the Mamata Banerjee’s
Trinamool Congress government namely
“West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance
and Miscellaneous Provision) Act, 2012” and consequently, the appointments of
the MLAs as Parliamentary Secretaries were set aside. The West Bengal
government moved the Supreme Court against the said order of Calcutta High
Court but till date there is no stay on the operation of impugned order of
Calcutta High Court. The SAD-BJP Punjab Government in 2012 appointed 18 MLAs as
Parliamentary Secretaries. The appointment was challenged by an Advocate
Jagmohan Singh Bhatti by way of a PIL (CWP-6715/2012) in the High Court of
Punjab and Haryana and the High Court reserved its orders on this petition on
28.07.2015. However, the same Punjab government appointed 7 more MLAs as Chief
Parliamentary Secretaries (although former Indian hockey captain Pargat Singh,
a SAD MLA, who was offered the post of Chief
Parliamentary Secretaries declined to take oath). The same lawyer has now filed
another PIL, pleading that it be merged with his 2012 petition. A Division Bench of the High Court quashed the said appointments on 12/08/2016. The Congress
Haryana government in 2012 appointed 12 MLAs as Chief Parliamentary
Secretaries. The current BJP Haryana government has appointed 4 MLAs as Chief
Parliamentary Secretaries. The same lawyer namely Jagmohan Singh Bhatti challenged it by way of a PIL (CWP-15186/2015) in the High Court of Punjab and
Haryana. A Division Bench of the High Court quashed the said appointments on 05/07/2017. The Telangana government’s decision to appoint six TRS
legislators as parliamentary secretaries in the rank of cabinet minister
under Telangana Parliamentary
Secretaries (Appointment, salaries, allowances and miscellaneous provisions)
Act, 2015
stayed by the
division bench of Hyderabad High Court in May, 2015.
[2]
. Rashtriya Mukti Morcha vs Govt. of NCT of Delhi & Ors [W.P.(C) 4714/2015]
PS:
The
division bench of the Delhi High Court on 8 September 2016 set aside the order
of the Government of Delhi dated 13.03.2015 appointing the Members of Delhi
Legislative Assembly named therein as Parliamentary Secretaries to the
Ministers, Government of NCT of Delhi.
The
High Court noted that one of the grounds of challenge is that the said order
was passed without communicating the decision to the Lieutenant Governor for
his views/concurrence as required under Article 239AA of the Constitution of
India. Having considered the very same issue in W.P.(C) No.5888/2015 and batch
titled Government of NCT of Delhi v. Union of India & Ors., by judgment
dated 04.08.2016 this Court held that “it is mandatory under the constitutional
scheme to communicate the decision of the Council of Ministers to the Lt.
Governor even in relation to the matters in respect of which power to make laws
has been conferred on the Legislative Assembly of NCT of Delhi under clause
(3)(a) of Article 239AA of the Constitution and an order thereon can be issued
only where the Lt. Governor does not take a different view and no reference to
the Central Government is required in terms of the proviso to clause (4) of
Article 239AA of the Constitution read with Chapter V of the Transaction of
Business of the Government of NCT of Delhi Rules, 1993.” The specific plea of
the petitioner that the impugned order dated 13.03.2015 was passed without
communicating the decision to the Lieutenant Governor for his views/concurrence
has not been disputed by the learned counsels appearing for the respondents.
Therefore, we find force in the submission of the learned counsel for the
petitioner that the issue is squarely covered by the decision in W.P.(C)
No.5888/2015 and batch titled Government of NCT of Delhi v. Union of India
& Ors. Accordingly, without going into the other contentions raised in the
writ petition, the impugned order dated 13.03.2015 is hereby set aside.
[3]
. See article by P.D.T. Achary, “It’s about propriety, not
constitutionality”, The Hindu, New Delhi, June 21, 2015
[4] . AIR 1970 SC
694
[5] . AIR 1954 SC
653
[7] . Writ
Petition (Civil) No. 199 of 2006 decided on May 8, 2006.
“6.
An office of profit is an office which is capable of yielding a profit or
pecuniary gain.
Holding
an office under the Central or State Government, to which some pay, salary,
emolument,
remuneration or non-compensatory allowance is attached, is “holding an office
of
profit”.
The question whether a person holds an office of profit is required to be
interpreted in
a
realistic manner. Nature of the payment must be considered as a matter of
substance rather
than
of form. Nomenclature is not important. In fact, mere use of the word “honorarium”
cannot
take the payment out of the purview of profit, if there is pecuniary gain for
the
recipient.
Payment of honorarium, in addition to daily allowances in the nature of
compensatory
allowances, rent free accommodation and chauffeur driven car at State expense,
are
clearly in the nature of remuneration and a source of pecuniary gain and hence
constitute
profit.
For deciding the question as to whether one is holding an office of profit or
not, what is
relevant
is whether the office is capable of yielding a profit or pecuniary gain and not
whether
the
person actually obtained a monetary gain. If the “pecuniary gain” is “receivable”
in
connection
with the office then it becomes an office of profit, irrespective of whether
such
pecuniary
gain is actually received or not. If the office carries with it, or entitles
the holder to,
any
pecuniary gain other than reimbursement of out of pocket/actual expenses, then
the office
will
be an office of profit for the purpose of Article 102(1)(a). This position of
law stands
settled
for over half a century commencing from the decisions of Ravanna Subanna v.
G.S.
Kaggeerappa
[AIR 1954 SC 653] , Shivamurthy Swami Inamdar v. Agadi Sanganna
Andanappa
[(1971) 3 SCC 870] , Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep
Kumar
Dev [(1992) 4 SCC 404] and Shibu Soren v. Dayanand Sahay [(2001) 7 SCC 425]”.
[Emphasis
Supplied]".
Moreover, it is pertinent to note in this context that the Nineteenth Report of the Joint Parliamentary Committee on Offices of Profit (Sixteenth Lok Sabha) which was presented to the Lok Sabha on 28.03.2017 and laid before the Rajya Sabha on 28.03.2017 has noted as under:
Moreover, it is pertinent to note in this context that the Nineteenth Report of the Joint Parliamentary Committee on Offices of Profit (Sixteenth Lok Sabha) which was presented to the Lok Sabha on 28.03.2017 and laid before the Rajya Sabha on 28.03.2017 has noted as under:
“4.
The expression “holds any office of profit under the Government” occurring in
Article 102
(1)(a)
and 191(1)(a) has nowhere been defined precisely. However, in order to
determine
whether
an office held by a person is an office of profit under the Government, the
Joint
Committee
on Office of Profit, in their Tenth Report (7th Lok Sabha), presented to Lok
Sabha
on
7 May, 1984, (Annexure-II) laid down the following guiding principles:-
"The
broad criteria for the determination of the question whether an office held by
a
person
is an office of profit have been laid down in judicial pronouncements. If the
Government
exercises control over the appointment to an dismissal from the office
and
over the performance and functions of the office and in case the remuneration
or
pecuniary
gain, either tangible or intangible in nature, flows from such office
irrespective
of whether the holder for the time being actually receives such
remuneration
or gain or not, the office should be held to be an office of profit under
the
Government Otherwise, the object of imposition of the disqualification as
envisaged
in the Constitution will become frustrated. This first basic principle should
be
the guiding factor in offering positions to a member of the Legislature."
5.
Keeping the above position in view, the Joint Committee on Offices of Profit,
have been
following
the undernoted criteria to test the Committees, Commissions, etc. for deciding
the
question
as to which of the offices should disqualify and which should not disqualify a
person
for
being chosen as, and for being a Member of Parliament:-
(i)
Whether the holder draws any remuneration, like sitting fee, honorarium,
salary,
etc.
i.e. any remuneration other than the 'compensatory allowance’ as defined in
Section
2(a) of the Parliament (Prevention of Disqualification) Act, 1959; (The
Principle
thus is that if a member draws not more than what is required to cover the
actual
out of Pocket expenses and does not give him pecuniary benefit, it will not act
as
a disqualification)
(ii)
Whether the body in which an office is held, exercises executive, legislative
or
judicial
powers or confers powers of disbursement of funds, allotment of lands, issue
of
licenses, etc., or gives powers of appointment, grant of scholarships, etc; and
(iii)
Whether the body in which an office is held enables the holder to wield
influence
or
power by way of patronage.
If
reply to any of the above criteria is in affirmative then the office in
question will entail
disqualification”.
[Emphasis Supplied]
[8] . Abdul
Shakur vs. Rikhab Chand (AIR 1958 SC 52), Ramappa vs. Sangappa (AIR
1958 SC 937), Guru
Gobind Basu vs. Sankari
Prasad Ghosal (AIR
1964 SC 254),Shivamurthy Swami
vs. Sanganna Andanappa (1971)
3 SCC 870
[9] . (2014) 8 SCC 934
[10] . A certificate dated 21/4/2016 issued by Deputy
Secretary IV/Admn. (GAD) to a Parliamentary Secretary notes that no facility
viz. Technical devices, vehicle, staff for office, residential accommodation,
official space, travelling allowance or any additional emolument/reimbursement
of any nature in the capacity as Parliamentary Secretary has been provided
to the Parliamentary Secretary by the
GAD. It is noteworthy that Hon’ble Speaker, Delhi Vidhan Sabha had issued an
allotment order No. F. 16 (50) 2014-15/las/ct/5437-5443 providing for rooms to
the Parliamentary Secretaries to the Ministers of GNCTD in the premises of
Delhi Assembly. But, the status of actual occupancy of these rooms is not in
public domain. However, without further delving into the concept of “office of
profit” vis-a-via said allotment order, it is emphatically brought out that
Article 191 of the Constitution and Section 15 (1) (a) of GNCTD Act, 1991 bring
into their ambits any “office of profit” under the Government. Needless to say
that act of Speaker of Delhi Legislative Assembly by way of said allotment
order is not an act of Government of NCTD. Constitutionally speaking, Delhi
Legislative Assembly and Government of NCTD are separate and distinct entities.
The whole concept of “office of profit” law is based on separation of powers in
the constitutional scheme of the legislature, the executive and the judiciary. The objective behind “office of profit”
clause in the Constitution is to ensure that the legislature is not under undue
influence of the executive.
[11] . Parliamentary
Secretary to the Chief Minister; Chairman and Vice-Chiarman, Trans-Yamuna Area
Development Board and Delhi Development Rural Board; Chairman;
Vice-Chairperson, Delhi Jal Board; Chairmen, 9 District Development Committees;
Chairman, Delhi Wakf Board; Chairperson,
Scheduled Castes/Scheduled Tribes Welfare Board; Chairperson, Vice-Chairperson
and members of the Fire Prevention Advisory Committee, the Hospital Advisory
Committee and Governing Body of Government-sponsored college; Chairman and
member of cooperative institution; Chairman, Director or member of statutory or
non-statutory body or Committee or corporation or society constituted by the
Government
[12] . The said
legislative proposal (Bill) requires to be referred to the Central Government
by Lt. Governor for necessary approval before its introduction in Delhi
Legislative Assembly in terms of Rule 55 of the Transaction of Business of the
Government of NCTD Rules, 1993 (made under Section 44 of the GNCTD Act, 1991)
for being inconsistent with Section 15 (1) (a) of GNCTD Act, 1991 (a Central
law). However, Article 255 of the Constitution and Section 26 of the GNCTD Act,
1991 provide adequate leeway even for a post facto approval by Central
Government. Nonetheless, even if requirement of prior approval/previous
sanction is indispensable and any Bill is passed by the House without such
approval/sanction and sent to Lt Governor for further necessary action (assent
of Lt Governor/approval of Central Government/assent of the President as the
case may be), it becomes incumbent upon the Lt Governor/Central Government to
return the Bill to the House and/or GNCTD without undue delay for doing the
needful.
Also
notable that Section 15 (1) (a) of GNCTD Act, 1991 reads thus: A person
shall be disqualified for being chosen as, and for being, a member of the
Legislative Assembly: if he holds any office of profit under the Government of
India or the Government of any State or the Government of Union
Territory other than an office declared by law made by Parliament or by the
Legislature of any State or by the Legislative Assembly of the Capital or of
any other Union territory not to disqualify its holder. Since the exempting Acts of 1997 and 2006,
and exempting Bill of 2015 are not in derogation of foregoing provision rather enacted/attempted to be enacted in
sync with permissible mandate of said provision of Act of 1991. Hence,
alternatively, it may be argued the said Rule 55 is not applicable on
legislative proposals re exempting Acts of 1997 and 2006, and exempting Bill of
2015. The assent by Lt. Governor would
have served the purpose without “requiring any reference to Central Government
and further reserving if for Presidential assent”.
Relevant portion of said Rule 55
sets out that “the
Lieutenant Governor shall refer to the Central Government every legislative proposal,
which (a) if
introduced in a Bill form and enacted by the Legislative Assembly, is required to be
reserved for the consideration
of the President under the proviso to sub
clause(c)
of clause (3) of article 239 AA or, as the case may be, under the second proviso to
section 24 of the Act; (b) attracts provisions of
articles 286, 287, 288 and 304 of
the
Constitution as applicable
to the Capital; (c) relates to any matter which may
ultimately necessitate
additional financial assistance from the Central Government through substantive
expenditure from the
Consolidated
Fund of the Capital or abandonment of
revenue
or lowering of rate of any tax.”
Relevant portion of said Article
239AA (3) (c) sets out that “if any provision of a law made by the Legislative
Assembly with respect to any matter is repugnant to any provision of a law made
by Parliament with respect to that matter, whether passed before or after the
law made by the Legislative Assembly, or of an earlier law, other than a law
made by the Legislative Assembly, then, in either case, the law made by
Parliament, or, as the case may be, such earlier law, shall prevail and the law
made by the Legislative Assembly shall, to the extent of the repugnancy, be
void: Provided that if any such law made by the Legislative Assembly has been
reserved for the consideration of the President and has received his assent,
such law shall prevail in the National Capital Territory.”
[13] .
Although it’s not gainsaid to emphasize that “First among equals” i.e. Chief
Minister is a Minister first. As a corollary, it may be argued that since
Parliamentary Secretary to the Chief Minister already has immunity by way of
The Delhi Members of Legislative Assembly (Removal of Disqualification) Act,
1997, as amended in 2006 retrospectively and likewise Parliamentary Secretaries
to the Ministers are also protected under the said law even without
effectuating the amendment of 2015 in said law. It may not be out of place to
note that as per Section 13 of The General Clauses Act 1897- unless there is
anything repugnant in the subject or context- words in the singular shall
include the plural and vice-versa.
[14] . A petition calling for Ms Sonia Gandhi’s
disqualification for holding office of profit as Chairperson, National Advisory Council (NAC)
was filed by Telugu Desam Party with the then President A.P.J. Abdul
Kalam. This was followed by another petition filed by BJP MP Ananth Kumar under articles 102 and 103 of the
Constitution which bars elected MPs from holding offices of profit. To add to
the pressure, the Opposition led by Atal Bihari Vajpayee had also petitioned
the President to prevent any ordinance to amend the Parliament (Prevention of
Disqualification) Act, 1959, exempting a fresh batch of offices, including the
office of Chairperson, NAC. Amidst this,
on March 23, 2006 Sonia Gandhi resigned as MP. Interestingly, soon
thereafter, the Parliament (Prevention of
Disqualification) Amendment Bill 2006 for further amending 1959 Act was passed
and thereby exempted 46 posts across the political spectrum, including the
National Advisory Council (NAC) chairmanship.
[15] . Writ
Petition (Civil) No. 448 of 2006 decided on August 24, 2009
[16]. AIR 1970 SC 694. In this case, an Act of the
Rajasthan legislature removed the disqualification retrospectively. Ms.
Kathuria, a member of the legislature was disqualified by the High Court for
holding an office of profit. When the appeal was filed in the Supreme Court,
the Assembly passed an Act removing the disqualification. This was upheld by
the Supreme Court. The court said “there is nothing in the words of the article
(191) to indicate that this declaration cannot be made with retrospective
effect”.
[17] . Although, the
current President of India Sh. Pranab Mukherjee himself got benefit of such law
in the past. In 2006, Sh. Pranab Mukherjee was MP and also Chairman, Indian
Statistical Institute which was an “office of profit”. It was one of the 45
posts/offices excluded by Parliament
(Prevention of Disqualification) Amendment Act, 2006 from the operation of Article 102
retrospectively.
[18] . As reported in Times of India & Hindustan Times,
Delhi Editions dated14/06/2016
[19] . Sh. Subodh
Uniyal & others vs Speaker, Legislative Assembly & another
[WP No. 826/2016[M/S)] decided on May 9, 2016.
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