N.M. KASLIWAL, J. -
(1.)THIS special appeal is directed against the order of the learned Single Judge dated January25, 1984, dismissing the writ petition No. 2037/82.
(2.)THE petitioners Rajasthan Legislative Assembly Secretariat Officers' Association (hereinafter referred to as 'the Officers Association') and Shri B. Goswami, Deputy Secretary, Estimates Committee and Administration, Rajasthan Legislative Assembly Jaipur, filed a writ petition claiming the following reliefs : - "It is, therefore, humbly prayed: (i)- that the appointment of respondent No. 5 on the post of Secretary, Rajasthan Legislative Assembly by order dated 6.2.81 may be quashed and he may further be restrained forthwith from functioning as Secretary of the Rajasthan Legislative Assembly; (ii)- that respondent No. 5 has no legal authority to hold the post of Assembly Secretary and he is merely usurper of the office and by a writ of quo warranto he may be removed from the office; (iii)- that by a suitable writ, order or direction, the respondents may be restrained from posting and appointing any employee other than an officer belonging to the Rajasthan Legislative Assembly Secretariat cadre as Secretary of the Rajasthan Legislative Assembly; (iv)- that rule 4(i) as well as rule 4(8) and sub-rule 4(ii) of the Rules of 1952 may be declared ultra vires Articles 14,16 and 187 of the Constitution; (v) that rule 3 of the Rules of 1962 empowering the State Government to create such number of posts for the Assembly Secretariat as they think necessary may be declared ultra vires Article 87 of the Constitution and quashed, as it clothes the State Government with arbitrary authority and may hamper the functioning of the Legislature; (vi)- that item No. 2 of Schedule II of the Rules of 1959 may be quashed; (vii)- that for purpose of elucidation and clarification it may be declared that the term 'transfer' used in rule 4 1) of the Rules of 1952 does not cover deputation of a member of any other service of the State particularly on the post of Secretary, Rajasthan Legislative Assembly; (viii) that the respondent No. 1 may be directed to frame as soon as practicable detailed and self-contained rules laying down the procedure of recruitment and conditions of service of the employees of the Assembly Secretariat, keeping in view the provisions of Article 187(1) of the Constitution of India; (ix)- that any other suitable order may be passed in favour of the petitioners; and (x)- that costs may be awarded to the petitioners." THE learned Chief Justice dismissed the writ petition by passing the following order : - "Heard learned counsel for parties at length. I find no merits in this writ petition and the same is hereby rejected. THEre will be no order as to costs."
The case of the petitioner-appellants was that the petitioner No. 2, B. Goswami, was the senior most Deputy Secretary in the Rajasthan Legislative Assembly. Initially he joined government service in the year 1945 in the former State of Bikaner. With the formation of the Rajasthan Legislative Assembly he was appointed as a reporter in the year 1952 and as a result of competitive examination held by the Assembly Secretariate in which he stood first, he was promoted as Section Officer (then called Superintendent) in 1960. Thereafter, he was promoted as Assistant Secretary in 1961 and as Deputy Secretary on November 29, 1971. He was confirmed as Deputy Secretary with effect from March 24, 1977. There were three posts of Deputy Secretaries in the Assembly Secretariat and Shri B. Goswami was the senior most Deputy Secretary holding this post for the last 11 years and was eligible to be appointed as Secretary, Rajasthan Legislative Assembly.
It was alleged in the writ petition that the respondent Ho. 5, a member of Rajasthan Higher Judicial Service, had been placed on deputation by the Rajasthan High Court for appointment as Secretary, Rajasthan Legislative Assembly vide order dated February 3.1981. The State Government issued an order dated February 5, 1981, by which the services of the respondent No. 5 were placed at the disposal of the Speaker. Thereafter the Speaker, Rajasthan Legislative Assembly appointed respondent No. 5 as Secretary, Rajasthan Legislative Assembly vide order dated February 6, 1981. It may be further mentioned that during the pendency of the writ petition Shri Pritam Aadhar Sinha was appointed as Secretary, Legislative Assembly in place of respondent No. 5 by order dated February 2, 1983. Mr. Pritam Aadhar Sinha was also a member of Rajasthan Higher Judicial Service and was appionted on the post of Secretary in a similar manner as respondent No. 5. The petitioner-appellants thus filed the writ petition claiming the above mentioned reliefs.
Aggrieved against the aforesaid order the present special appeal has been filed. Mr. Mehta, learned counsel for the appellants, submitted that the appointment of members of other services to the Secretariat staff of Rajasthan Legislative Assembly is illegal and against the basic structure of the Constitution of India. It was argued that under Article 187 of the Constitution of India it has been provided that the House or each House of the Legislature of a State shall have a separate secretarial staff The Legislature of a State has been authorised by law to regulate the recruitment and conditions of service of persons appointed to the Secretarial staff of the House or Houses of the Legislature of the State. It is further submitted that under clause (3) of Article 187 of the Constitution it has been provided that: "Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the condition of service of persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause". It is submitted that under the aforesaid provision of clause (3) of Article 187, rules were made by the Governor as early as in 1952, but thereafter no rules have been made by the Legislature of the State. It is contended that the provision under clause (3) of Article 187, which empowered the Governor to make rules, was only a kind of stop-gap arrangement and in reality such rules should be made by the Legislature itself. The rules as such made by the Governor in 1952 have lost its force after a lapse of 32 years and should be declared invalid as the same are against the spirit of provisions laid down in clause (2) of Article 187 which only empowers the Legislature of the State to make such Rules.
We find no force in this contention. It is no doubt true that under clause (2) of Article 187, the Legislature of a State has been empowered to make rules regulating the recruitment and the conditions of service of persons appointed to the Secretarial staff of the House but under clause (3) of Article 187 it has been clearly provided that until provision is made by the Legislature under clause (2), the Governor may after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make Rules in this regard. It is for the Legislature to exercise its powers under clause (2) of Article 187 and any time lag or any in action on the part of the Legislature to act under clause (2) of Article 187, cannot, in any manner, make the Rules, made by the Governor after consultation with the Speaker, as invalid. This court has no jurisdiction to give a mandamus to the Legislature to invoke its powers under clause (2) of Article 187 of the Constitution. Clause (3) of Article 187 clearly provides that until any provision is made by the Legislature of the State under clause (2) the Rules made by the Governor shall have effect and as such the Rules made by the Governor in 1952 cannot to held to be illegal or ultra vires merely on the ground that the Legislature has not made any Rules under clause (2) of Article 187.
(3.)IT was further contended by Mr. Mehta that the basic idea in framing Article 187 of the Constitution was that the Legislature of State should func- tion independently of the executive and the judiciary, in the matter of appoin- ting secretarial staff of the Legislature. Mr. Mehta, learned counsel for the appellants, quoted the following speech of Dr. B.R. Ambedkar in support of the above contention: - "IT was, as every one most probably in this House knows, a matter of contention between the Executive Government and the President ever since the late Mr. Vithalbhai Patel was called upon to occupy the President's Chair in the Assembly. A dispute was going on between the Executive Government and the President of the Assembly. The President had contended that the Secretariat of the Assembly should be independent of the Executive Government. The Executive Government of the day, on the other hand, contended that the Executive had the right to nominate, irrespective of the wishes and the control of the President, the personnel and the staff required to serve the purposes of the Legislative Assembly. Ultimately, the Executive Government in 1928, gave in and accepted the contention of the then President and created an independent Secretariat for the Assembly. So far, therefore, as the Central Assembly is concerned, there is really no change effected by this new Article 79-A, because what is provided in clause (1) of Article 79-A is already a fact in existence. But is was pointed out that this procedure, which has been adopted in the Central Legislature as far back as 1928 or 1929, has not been followed by the various Provincial Legislatures. In some provisions the practice still continues of some officer, who is subject to the disciplinary jurisdiction of the Legislative Department, being appointed to act as the Secretary of the Legislative Assembly, with the result that that officer is under a sort of dual control, control exercised by the department of which he is an officer and the control by the President under whom for the time being he is serving. IT is contended that this is derogatory to the dignity of the Speaker and the Independence of the Legislative Assembly. The Conference of the Speaker passed various resolutions insisting that besides making this provision in the Constitution, several other provisions should also be made in the Constitution, so as to regulate the strength, appointment conditions of service, and so on and so forth. The Drafting Committee was not prepared to accept the other contentions raised by the Speakers' conference. They thought that it should be quite enough if the Constitution contained a simple clause stating that Parliament should have separate Secretarial staff and rest of the matter is left to be regulated by Parliament. Clause (3) provides that until any provision is made by Parliament, the President, in consultation with the Speaker of the House of the People or the Chairman of the Council of States, make rules for the recruitment and the conditions of service When Parliament enacts a law, that law will over-rule the rules made pretempore by the President in consultation with the Speaker of the House of the People. I think that the provision that we have made is sufficient to meet the main difficulty, which was pointed out by the Speakers' Conference. I hope this House will find no difficulty in accepting this new article."
It was also submitted by Mr. Mehta that ever since the commencement of the Constitution of India, the question of having an independent Secretariat Organisation for the Legislature had been engaging the attention of the Speaker and the Secretaries of Legislature and a concensus had been arrived at in the following manner: - "(i) - the staff of such bodies should be completely free from the control of the Executive; (ii) - that the post of the Secretary to the Legislature should be filled in by promotion from amongst the existing staff and if a suitable person holding the requisite qualifications and experience, is not available by promotion, then only recourse should be had to appointment by transfer or permanent deputation; and (iii) - that the staffing pattern of the Parliament Secretariat should be adopted in all the Legislature Secretariats. In the Lok Sabha and the Rajya Sobha the post of Secretary has been filled in always by promotion and in any case not by deputation from persons belonging to other services. Similar is the position in certain other State Legislatures, e.g. Haryana etc. also for the past several years."
M. Mehta placed reliance on the following observations made in N.V.S. Jayalakshmi vs. The Secretary, Andhra Pradesh Legislature, Hyderabad (1) by a Division Bench of Andhra Pradesh High Court: - "It is clear from these proceedings that the main object of enacting Article 98 in regard to Parliament and Article 187 in regard to State Legislature is to preserve the independence of the Legislature and see that the staff of the Legislature Secretariat is under the control of the Speaker and should not be assimilated to the position of the staff of other departments of the executive. It is in the light of these proceedings that the expression 'the House or each House of the Legislature of a State shall have a separate Secretariat staff' should be understand. The object of having such a separate staff is not merely to have a staff physically separate from the staff of the other departments of the executive. In truth and in fact, it must be a separate staff in the sense that it should not be under the control of the executive. In the impugned rules on the other hand, we find that the Legislature Secretariat is regarded as a department of the Government. The Secretary of the Legislature is called Secretary to Government'. Similarly Deputy 'Secretaries and Assistant Secretaries are also called Deputy Secretaries to Govt. and Assistant Secretaries to Government. Rule 3 makes the Andhra Pradesh State and Subordinate Services Rules the Andhra Pradesh Civil Service (Conduct) Rules, 1964 and the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, applicable to the members of the Andhra Pradesh Legislature Service. In other words, the appointing authority in the case of Secretary, Deputy Secretaries and Assistant Secretaries in the Government. The disciplinary control is that of the Government. The Speaker of the Assembly or the Chairman of the Legislature Council has no place of part either in the appointment or in the exercise of disciplinary control over the members of the staff. It is therefore clear that far from being independent of the executive, the members of the staff including the Secretary are all part of the executive and the Legislature Secretariat is treated for all purposes as a department of the Government except for the fact that there is a separate set of rules for the appointment of members of the staff to this service. The fact that the members of the staff of the Legislature Secretariat are governed by a separate set of rules does not make them any the less the members of a department of Government as is clear from the rules themselves. We, therefore, agree with the contention of the learned counsel for the petitioner that the rules infringe Article 187 (1) of the Constitution."