NTC Letter to Guv for Removal of Posts of Advisors and Parliamentary Secretaries

Your Excellency Sir,

The Applicants before Your Excellency are the Executive Members of the Nagaland Tribes Council (NTC in short). The NTC is a social/traditional body representing dreams and aspirations of the citizens of Nagaland. The NTC had seriously and consciously deliberated into the matter of existing unconstitutional post of Advisers and Parliamentary Secretaries in the State of Nagaland in the backdrop  of the Hon’ble Supreme Court Judgment dated 26.07.2017.

The instant Representation is submitted before Your Excellency on the following facts and circumstances;

1. That the afore noted Transferred case (Civil) No. 169/2006   Bimolangshu Roy (Dead) through LRs   -vs- State of Assam & Another  was filed challenging the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions, Act 2004. The relevant provisions of the Act is reproduced as follows;

Sec 2 (c)  of the Act defines Parliamentary Secretary as “a Member of the Assam Legislative Assembly appointed as Parliamentary Secretary under this Act by the Chief Minister.”

Sec. 3 stipulates that “The Chief Minister may, having regard to the circumstances and the need of the situation, at any time appoint such Parliamentary Secretaries and assign to each of them such duties and functions as he may deem fit and proper.”

Sec 4 of the Act stipulates that “A Parliamentary Secretary shall be of the rank and status of a Minister of State and shall exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister by way of a notification published in the official Gazette.”

Sec. 7 of the Act provides that “A Parliamentary Secretary shall be entitled to such salary and allowances as are admissible to a Minister of State under the Assam Ministers, Ministers of State and Deputy Ministers Salaries and Allowances Act, 1958.”

That Article 164 (1A) of the Constitution of India stipulates that “The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of the State;

Provided that the number of Ministers, including the Chief Minister in State shall not be less than twelve;

Provided further that where the total number of Ministers including the Chief Minister in the Council of Ministers in any State at the commencement of the Constitution ( Ninety- first Amendment) Act, 2003 exceeds the said fifteen percent or the number specified in the first proviso, as the case may be, then the total number  of Ministers in that State shall be brought in conformity with the provisions of this clause within six months date * as the President may public notification appoint.”

2. That by the Judgment dated 26.07.2017 the Hon’ble Supreme Court of India consisting of the Bench of Justice J.Chelameswar, Justice R.K Agarwal and Justice Abhay Manohar Sapre has ruled and declared that the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions, Act 2004 as unconstitutional. The relevant portion of the Judgment is reproduced as follows;

Para 44 “Thus it can be seen from the scheme of Article 194 that it does not expressly authorize the State Legislature to create offices such as the one in question. On the other hand, Article 178 speaks about the offices of Speaker and Deputy Speaker. Article 179 deals with the vacation of those offices or resignation of incumbents of those offices, whereas Article 182 and 183 deal with Chairman and Deputy Chairman of the Legislative Council wherever the Council exists. In our opinion, the most crucial Article in this chapter is Article 187 which makes stipulations even with reference to the Secretarial staff of the Legislature. On the face of such elaborate and explicit constitutional arrangement with respect to the Legislature and the various offices connected with the legislature and matters incidental to them to read the authority to create new offices by legislation would be wholly irrational way of construing the scope of Article 194 (3) and entry 39 of List II. Such a construction would be enabling the legislature to make a law which has no rational connection with the subject matter of the Entry, “The powers, privileges and immunities”as contemplated by Article 194 (3) Entry 39 are those of the legislators qua legislators.”

Para 45. “For the above-mentioned reasons, we are of the opinion that the Legislature of Assam lacks the competence to make the impugned Act. In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier. The impugned Act is declared unconstitutional.”

A copy of the said Judgment is annexed herewith as ANNEXURE: Á

3. That in the State of Nagaland, after downsizing of the Council of Ministers in accordance with Constitution ( Ninety-first Amendment) Act, 2003 Advisors and Parliamentary Secretaries were appointed by the Chief Ministers in all their respective tenures. At present there are 9 (nine) unconstitutional Advisors with Cabinet status and 26 (twenty six) unconstitutional Parliamentary Secretaries in the State of Nagaland. It is pertinent to state that there is no such Act of Advisors and Parliamentary Secretaries in Nagaland but they are govern and regulate by THE NAGALAND SALARIES, ALLOWANCES AND OTHER FACILITIES OF THE CHIEF MINISTER, OTHER MINISTERS, SPEAKER, LEADER OF OPPOSITION, DEPUTY SPEAKER, PARLIAMENTARY SECRETARIES AND OTHER MEMBERS OF THE NAGALAND LEGISLATIVE ASSEMBLY AND PENSION FOR EX-MEMBERS ACT, 2005. The relevant provisions of the Act are reproduced as follows;

Sec 2 (12) of the Act defines Parliamentary Secretary as “Parliamentary Secretary is a member of the Nagaland Legislative Assembly so appointed by the Chief Minister under the provisions of the Rules of Executive Business of the Government of Nagaland and the Notification issued in this regard by  the Department of Parliamentary Affairs of the Government of Nagaland.”

Schedule- 1 (Sec.3) of  the Act stipulates about the salary, vehicle entitlements, accommodation and other facilities of the Parliamentary Secretaries at par with the Chief Minister, other Ministers, Speaker, Leader of Opposition and Deputy Speaker. The is no mention about the Advisors in the said Act in question.

4. That vide Notification No CAB-1/2013 dated 26.07.2017 the Chief Minister of Nagaland has appointed 9 (nine) unconstitutional Advisors and 26 (twenty six) unconstitutional Parliamentary Secretaries purportedly under Rule 5 read with other relevant provisions of the Rules of Executive Business of the Government of Nagaland. The said Rule to which the Chief Minister has resorted in appointing the 9 (nine) unconstitutional Advisors and 26 (twenty six) unconstitutional Parliamentary Secretaries is irrelevant and the appointments were made in absolute distortion of the said Rules and in total contravention of the Constitutional 91^st (Ninety-first) Amendment.

A copy of the Notification dated 26.07.2017 is annexed herewith as ANNEXURE- B

5. That the judgment dated 26.07.2017 pronounced by the Hon’ble Supreme Court of India is a Blanket Judgment in the matter of appointment of unconstitutional Parliamentary Secretaries in the States of India wherever it exists. As the Hon’ble Supreme Court has declared Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions), Act 2004 as unconstitutional, the appointment of unconstitutional Advisors and unconstitutional Parliamentary Secretaries in the State of Nagaland is deem to be interfered with by Your Excellency for cancelling/rescinding the Notification NO. CAB-1/2013 dated 26.07.2017.

In the premises aforesaid, the Applicants urge upon Your Excellency to examine the matter and initiate appropriate action in terms of the  Hon’ble Supreme Court Judgment dated 26.07.2017 within 7 (seven) days from the date of receipt of this Representation.

Thanking you in anticipation.

Yours faithfully,
1.Theja Therieh
2. Joel Nillo Kath
3. Vimedo Hibo
4. Kitoho S. Rotohka
5.Nchumbemo Tongoe
6.Akang Ao
7.Zhovehu Lohe