Parliamentary Secretaries – Office of Profit
Various
petitions in the High Court have challenged the appointment of Parliament
Secretary, arguing that the post is in contradiction to Article 164 (1A) of the
Constitution which provides for limiting the number of Ministers in the State
Cabinets to 15
per cent of the total number of members of the State Legislative
Assembly. Because a Parliament Secretary often holds the rank of Minister of
State.
Latest Issue:
The ongoing
debate around Delhi is whether the post of ‘Parliamentary Secretary’ is an
‘office of profit.’
Office of profit
Office
of profit is not defined in the Constitution. However, in past judgments, the
Election Commission has noted “what constitutes an office of profit under the
Government is now well established by a catena of judgments of the Supreme
Court.”
Five
tests have been laid down:
(i)
whether the government makes the appointment;
(ii)
whether the government has the right to remove or dismiss the holder;
(iii)
whether the government pays remuneration;
(iv)
what the functions of the holder are; and
(v)
does the government exercise any control over the performance of these
functions.
The Delhi
government argues that as Parliamentary Secretaries are not eligible for any
remuneration or perks from the government the post should be exempt from the
office of profit. As regards the
sub-judice matter relating to appointment of parliamentary secretaries, the MHA
said appointments were not covered under the existing law.
The
number of Cabinet Ministers in Delhi cannot exceed 10 per cent of the total 70
seats — that is seven — as per Article 239AA of Constitution. As of now, only
one Parliamentary Secretary to the Chief Minister is authorised.
Judgements
Aires Rodrigues vs. the
State of Goa: It relates to Aires Rodrigues vs
The State of Goa, 2009, where the court ruled that parliamentary secretaries
represented the government in the assembly and, while assisting the CM, would
have the authority to pass orders. They would also participate in the
decision-making process and take decisions themselves and this, in "spirit
and substance", meant they were equivalent to Cabinet ministers.
Vishal Bhattacharya vs. The State of West Bengal: Another verdict in Vishal Bhattacharya vs The State of West Bengal and Others (2015), the department pointed out how the court quashed the Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act, 2012, on the ground that "the description of parliamentary secretary and duties assigned to them is nothing but allowing an MLA to become de facto minister".
Others:
In
May 2015, the Hyderabad High Court stayed the appointment of Parliamentary
Secretaries in Telangana. The matter is sub judice in Punjab and Haryana.
Conclusion:
According to above Statements and
Judgements, If a parliamentary secretary is handling government files and
taking decisions, it is deemed an office of profit.
