THE IMBROGLIO OF THE POSITION OF PARLIAMENTARY SECRETARIES VIS-À-VIS OFFICE OF PROFIT IN NATIONAL CAPITAL TERRITORY OF DELHI

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 91^st 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)

PS- 2 (June 25, 2017):

ECI : 21 AAP MLAs did hold de facto the office of PSs from 13th March 2015 to 08th September 2016 and the interpretation as sought to be put by them on the order dated 08tr'September 2016 of the Hon'ble Delhi High Cor-rrt that they did not hold any office is not legally terrable. Flence, without prejudice to the merits of the case, the reference relatirrg to the question of alleged disqualification of the respondents under Section 15(a) of the GNCTof Delhi Acr, l99l for holding the said office survives and is maintainable in respect of all the said respondents, except respondent no. 16 (Shri Jarnail Singh, MLA of Rajouri Garden) who has resigned his office as MLA on 17th January 2017 and even a bye-election has been held in April 2017 to fill that vacancy in the Delhi Legislative Assembly.
The ECI order, inter alia, reads thus:

"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.

 PS: 4 (19th January 2018):

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. ( http://www.thehindu.com/news/national/ec-recommends-disqualification-of-20-aap-mlas/article22471630.ece ). 

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. 

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):

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.

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, 7^th 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, 7^th 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, 7^th 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, 7^th 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 20^th 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.

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[*]  B.Sc., LL.M., Ph.D., NET. The writer is an advocate.

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End notes

[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

[6] . (2001) 7 SCC 425

[7] . Writ Petition (Civil) No. 199 of 2006 decided on May 8, 2006. The oft quoted paragraph of this landmark case is as under:

“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:

“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.