AIRES RODRIGUES Vs. STATE OF GOA

JUDGEMENT

(1.) The Petitioner who is a practising advocate and who also claims to be a public spirited citizen, has approached this court by way of present Public Interest Litigation under article 226 of the Constitution of India wherein, on the strength of Constitutional mandate contained in Article 164(1A) of the Constitution of India, he questions the authority of respondent Nos.2 to 4 to hold the posts of 'Parliamentary Secretaries' and enjoy the status of Cabinet Minister and also questions respondent Nos.5 to 7 appointed to different posts in the State administration, as to how they enjoy the status and rank of Cabinet Minister. He also prays that the orders at Annexures 'P2' collectively and 'P4' collectively relating to respective group of respondents be revoked and cancelled being violative of the Constitutional mandate.

(2.) It is the case of the petitioner that the recent Assembly Elections which were held in May 2007, resulted in the fractured mandate from the electorate, with the Congress bagging 17 seats, BJP 14, NCP 3, MGP 2, Save Goa Front 2 and Independents winning 2 seats. As a consequence of this people's mandate, the Congress opted for support of its allies and was permitted to form a Government. Article 164(1A) requires that total number of Ministers, including Chief Minister, in the Council of Ministers in a State shall not exceed 15% of the total number of members of the Legislative Assembly of that State. Under proviso to Article 164, the total strength of Ministry shall not be less than 12. Applying this principle, the strength of Ministers including the Chief Minister in the Cabinet of the State cannot exceed 12. Vide Annexure P1, all the 12 posts of Cabinet/State Ministers had been filled up by the Chief Minister allotting different portfolios. Despite the fact that the prescribed strength of Ministers including Chief Minister had already been filled up, the Government in a hurried manner and to frustrate the Constitutional directive appointed respondent No.2 to 4 as 'Parliamentary Secretaries' with Cabinet rank/ status without any formal notification. However, notifications in this regard were issued on 6th July, 2007, 9th July, 2007 and 10th July, 2007 appointing Shri Nilkanth Halarnkar, Mrs. Victoria Fernandes, and Shri Francisco Silveira,all three Members of Legislative Assembly as 'Parliamentary Secretaries' and these notifications are collectively annexed to the writ petition as Annexure 'P2'. These respondents were sworn in by the Chief Minister. All these respondents have been accorded status or rank of a Cabinet Minister and permitted to engage 11 staff members of their own in line with the status and have also been provided with all the facilities and privileges of the Cabinet Minister. In addition to this, the respondent Nos. 5, 6 and 7 were appointed to different posts in the Government administration with rank / status of Cabinet Minister conferred upon them. Vide notifications dated 28th March, 2006, 2nd July, 2007 and 10th July, 2007, respondent No.5 was appointed as Chairman of Economic Development Corporation respondent No.6 as Deputy Chairman, State Planning Commission and respondent No.7 had already been appointed as Commissioner of NRI affairs and all of them were conferred with the status of Cabinet Ministers. The notifications have been annexed to the writ petition as Annexure 'P4'.

(3.) According to the petitioner, the very purpose of the 91st Amendment of the Constitution which restricts the size of Cabinet, was to prevent the installation of jumbo cabinets and resultant huge drain on the public exchequer. All these persons were not only appointed ostensibly as 'Parliamentary Secretaries' and as heads of Board, Corporation and Commission, but they were permitted to enjoy the status of Cabinet Ministers thus, in fact, defeating the very purpose of the amendment. In view of the prohibition contemplated under Article 164(1A) appointment of all these respondents is a back door entry and is in willful disobedience of the mandate of law. There is no legal power vested in the Government for making appointments as 'Parliamentary Secretaries' with the status of Cabinet Ministers and they cannot be made in the garb of exercise of executive powers. The Chief Minister does not have any power or authority to administer oath not being backed by any appropriate law. The 'Parliamentary Secretaries' are privy to official information and have access to official files and official documents in the course of the decision making process of the Government. Administering oath to respondent Nos.2 to 4, thus, is without any authority of law while respondent Nos.5 to 7 have not even been administered oath of secrecy which give them undue advantage of access to Government information, records and opportunity to participate in making Government policy without being bound by oath. The petitioner has specifically averred in the petition that the MLAs or party functionaries cannot be appointed to these posts even if there was some authority in law for making such appointments. Political patronage seems to be the order of the day and appointments for chairmanship of statutory corporations or Government corporations are made mala fide, in colourable exercise of power and with tearing hurry for political patronage, thus, are bad in law. Vide notice dated 11th July, 2007, the petitioner called upon respondent No.1 to immediately revoke and cancel the aforesaid appointments and conferments of the Cabinet status but of no consequence. According to the petitioner,these appointments besides being illegal and arbitrary are abuse of the power and it is at huge public cost particularly when they are entirely unwarranted and the respondents have no authority to continue to function in that status.