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mains Test Series 2018
Q. Issue of office of profit in Delhi Government: In the backdrop of recent verdict by Delhi High Court on legality of appointment of parliamentary secretaries, Comment on the issue.
Sep 12, 2016 Related to : GS Paper-2

Ans :

Introduction-

Recently Delhi High Court has set aside the Delhi government’s order of appointing 21 MLAs as Parliamentary Secretaries since it lacked the approval of the Lieutenant Governor (LG), the administrative head of Delhi. According to earlier verdict of Delhi High Court, the LG’s approval is mandatory for any executive action of Delhi Government.

Issues related to appointment of Parliamentary secretaries-

  • Appointment of Parliamentary secretaries made by Delhi Government suffered from multiple legal infirmities.
  • It lacks concurrence of LG, as it is necessary for any executive action of Delhi Government. According to Delhi High Court previous judgement any executive action of Delhi Government without concurrence of LG is null and void.
  • Similarly it raised the question of whether it was an office of profit under the government. Indian Constitution clearly bars legislators to hold any office of profit, except those exempted by law.
  • The penalty stipulated in the Constitution for a legislator holding an office of profit is disqualification. In this regard the Election Commission (EC) has reserved its verdict on the question whether these 21 MLAs have incurred such disqualification.
  • Though Delhi High Court has set aside these appointments, but EC could still choose to decide whether these MLAs had indeed held an office of profit for nearly a year-and-a-half.
  • As President withheld assent to a Delhi Government’s Bill to protect them from incurring disqualification, hence these MLA’s are vulnerable to disqualification by EC.

Analysis-

  • In practice, parliamentary secretaries are junior ministers, and enjoy perks and status of ministers of state. Hence Delhi Government could have avoided these appointments, which gives executive powers to MLA’s.
  • With the appointments of parliamentary secretaries the strength of the Council of Ministers had exceeded the constitutional limit of 10% (15% in case of full pledged state) on the strength of the Delhi Assembly, hence these appointment were challenged for disqualification.
  • Many states saved MLA’s who holds the post of parliamentary secretaries from disqualification by getting the post saved from disqualification by legislation. But such law does not exist in Delhi Government, hence they may be disqualified by EC on the ground of office of profit.
  • In recent times, due to 15% cap defined by constitution, political parties are appointing MLA’s as parliamentary secretaries to pacify its MLA’s. And such practice is rampant in state governments.
  • Hence there should be a proper mechanism to curb such a misuse of executive posts. And article 164 (1A) must be made strictly applicable to all executive posts.

Conclusion-

Appointment of Parliamentary secretaries by Delhi Government not only suffers from legal infirmities but also suffers from lack moral righteousness. There is rampant abuse of executive posts by other means such as parliamentary secretaries in various states. Hence there should be very strict mechanism to curb these abuses and constitutional provisions in this regard must uphold very strictly.


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