Challenging the appointment of Dy CM & 6 CPS by Congress in Himachal, BJP moves High Court

The BJP legislators in the state have knocked on the door of the High Court challenging appointment of Deputy CM and six Chief Parliamentary Secretaries by the Congress party in Himachal without any authority under the Constitution of India or any statutory enactment. 

Issuing notices, the division bench of Acting Chief Justice Tarlok Singh Chauhan and Justice Virender Singh listed the matter for hearing on May 19. Twelve BJP MLAs filed a plea before the high court on yesterday demanding action against the Congress government for creating the office of profit, without making constitutional provisions.  

According to a press release issued by BJP said that the Himachal Pradesh High Court on Thursday issued notices to the six Chief Parliamentary Secretaries (CPS), including the Deputy Chief Minister seeking their replies in a plea filed by twelve BJP MLAs who had challenged the appointments.

Party national legal cell convener and senior Advocate Satya Pal Jain said that appointment is arbitrary as the same is done without any authority under the Constitution of India or any statutory enactment. “…neither any provision of the Constitution of India nor any Statutory enactment nor any executive instruction contains any provision which empowers the State Government to create the office, post, and status of the Deputy Chief Minister in the State ” the petition maintains.

The plea also challenges the constitutionality of the Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges & Amenities) Act, 2006 under which six CPS have been appointed in the state.

”As the creation of the office, post, and status of the Dy CM  is without any authority of law, the same needs to be declared arbitrary, and the creation of the said office, post, and status of the Deputy Chief Minister may be set-aside,” the plea avers that appointment is arbitrary as the same is done without any authority under the Constitution of India or any statutory enactment.

The plea argued that as per Part VI- Chapter III of the Constitution of India, Article 178 to Article 187 deals with only the “Officers of the State Legislature”, which consist of three offices namely (a) the office of Speaker; (b) the office of Deputy Speaker; and (c) the Secretariat Staff and apart from these, nowhere does the Constitution envisage the creation of any new office of the legislature.

The Himachal Pradesh High Court on Thursday issued notices to the six Chief Parliamentary Secretaries (CPS), including the Deputy Chief Minister seeking their replies in a plea. It goes on to say that as per Article 191 of the Constitution of India, a person holding an office of profit shall be disqualified, however, these six CPSs, despite holding the office of profit under the 2006 Act, have been saved by virtue of Section 3 (d) of the HP Legislative Assembly Members (Removal of Disqualifications) Act, 1971 and therefore, the plea challenges the constitutional provision as well.

Importantly, the action of the State qua the appointment of six CPS has been questioned by invoking Article 164(1A) of the Constitution of India which says that the total number of Ministers, including the Chief Minister, in the Council of Ministers in a State could not exceed 15 percent of the total number of members of the Legislative Assembly of that State.

The plea says that applying this principle, the strength of Ministers including the Chief Minister in the Cabinet of the State could not exceed 12, however, by virtue of the impugned appointments under the 2006 Act, the ceiling limit of 12 members as envisaged under Article 164(1A) have been exceeded as the total numbers have gone up to 18 (with the appointment of 6 Chief Parliamentary Secretaries).

“…the State in a hurried manner and to frustrate the Constitutional directive by appointing seven respondents as Dy CM and CPS with Cabinet rank and status without any formal notification. It is also worth mentioning that six CPS (respondents no. 4 to respondent no. 9) were sworn in by the Chief Minister and that they have been accorded the status of a Minister with staff members of their own with all the facilities and privileges of the Ministers. 

The same would reflect that the State has frustrated the very purpose of the 91st Amendment of the Constitution which restricts the size of Cabinet, so as to prevent the installation of jumbo cabinets and resultant huge drain on the public exchequer.”

Against this backdrop, the Plea prays for setting aside the Notification (dated 11.01.2023) of designation of the Deputy Chief Minister as illegal and unconstitutional, directions to Respondent No. 1 to recover the money spent toward the consequential benefits including the salary Dy CM to the extent of benefits given above then the designation to the ‘Minister of State and restraining him to participate in any Cabinet Meeting.

The Plea also seeks quashing of the HP PS  Act, 2006 along with all the subsequent actions undertaken including the appointments of Respondent no. 5 to Respondent no. 10, as being illegal, irrational, and unconstitutional and quashing section 3 (d) HP legislative Assembly Members (Removal of Disqualifications) Act, 1971 as being illegal, irrational, and unconstitutional.