MADAL SUMER Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) Introductory and Rival Stands

(2.) On the matter being taken up for hearing, learned counsel for the petitioner submitted at the outset that the principal issue involved in this petition regarding constitutional validity of such an enactment creating the office of Parliamentary Secretary has now been settled by the threeJudge Bench decision of the Hon'ble Supreme Court in the case of Bimolangshu Roy (Dead) through LRs v. State of Assam and Anr., 2017 AIR(SC) 3552 Transferred Case (Civil) No.169 of 2006 decided on 26.07.2017 wherein, the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 ["the Assam Act of 2004"], has been declared unconstitutional for want of legislative competence of the State Legislature. Learned counsel for the petitioner submitted that the Meghalaya Act of 2005 being in pari materia with the Assam Act of 2004 and the basic issue having been settled by the Hon'ble Supreme Court, the present matter is squarely covered by the said decision in Bimolangshu Roy; and hence, the Meghalaya Act of 2005 also deserves to be struck down.

(3.) However, the learned Advocate General appearing for the respondents No. 1 and 2 submitted that the said decision in Bimolangshu Roy's case cannot be applied to the present case because of material difference in the two enactments namely, the Assam Act of 2004 and the Meghalaya Act of 2005. The learned Advocate General referred to the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) (Amendment) Act, 2016 ["the Amendment Act of 2016"] and submitted that by way of this amendment, brought into effect from 26.09.2016, the status and privileges of the Parliamentary Secretaries have been materially altered and thereby, they do not draw any salary or allowances as Parliamentary Secretaries and in essance, they remain only the members of Legislative Assembly. Thus, according to the learned Advocate General, the provisions contained in the Assam Act of 2004, as examined by the Supreme Court in Bimolangshu Roy's case, and those in Meghalaya Act of 2005 being different on material particulars, the ratio of Bimolangshu Roy does not apply to the present case. The learned Advocate General also submitted that the petitioner has not taken any pleadings so as to question the Meghalaya Act of 2005 on the ground of legislative competence; rather the petition was founded only on the ground that the Meghalaya Act of 2005 was hit by Article 164(1-A) of the Constitution of India and the Hon'ble Supreme Court having not ruled on the grounds taken in the present petition, Bimolangshu Roy cannot be applied as a binding decision under Article 141 of the Constitution of India.