1. The writ petition comes up for de novo consideration of its maintainability and the petitioner's claim for issue of a rule.
2. Consequent on the passing of G. 0. Ms. No. 31, Public (Special-A) Department dated Jan. 11, 1984, by the Government of Tamil Nadu, a vigilant citizen, who is the General Secretary of the Tamil Nadu Forum of Public Affairs, has filed this petition under Art. 226 of the Constitution praying for the issue of a Writ of quo warranto. The petition came up for orders on 16-2-1984 and notice was ordered to the respondents returnable by 27-6-1984, but subsequently, the forwarding of the notice was deferred pending further specific directions. There being no further directions. The Hon'ble The Chief Justice has directed this petition to be posted for admission before the regular Court dealing with writ petitions. A. rule nisi not having been issued, the petition has to be treated as coming for admission afresh before me. On that basis, I heard the arguments of the learned counsel for the petitioner.
3. Under the impugned G. 0., the Government accorded sanction to the creation of a temporary post of Commissioner and Secretary to Government, Legislative Assembly Department, on a fixed pay of 187 Rs. 2,500/- per mensem and special pay of Rs. 250/- per mensem besides eligibility to draw dearness allowance, house rent allowance, city compensatory allowance and other allowances as admissible under the State Rules. The posting of the first respondent was notified as under :-
'Thiru G. M. Alagarswamy, Secretary to Government. Legislative Assembly Department, is posted to act as Commissioner and Secretary to Government, Legislative Assembly Department, in the post sanctioned para 1 above.
Under R. 9(23)(b) of the Fundamental Rules, Thiru G. M. Alagarswamy is granted a personal pay of Rs. l,080/- per mensem (Rupees One thousand and eighty only). This order issues with the concurrence of the Finance Department - Vide: its U.No. 3695/FS/P/83 dated 7-2-1983.'The notification is impugned by the petitioner on the ground that under Art. 187(l) of , the House of each House of the Legislature of State should have a separate Secretarial staff, but notwithstanding this mandatory provision, the first respondent has been appointed Commissioner and Secretary to Government which is an Executive post and called upon to perform the functions of the Secretary of the Legislative Secretariat. The petitioner would say that the post of Commissioner and Secretary to Government is an Executive post falling within the purview of Art. 154 of the Constitution and as such, the posting of an officer of the Executive of the rank of Commissioner and Secretary to Government to the Legislative Secretariat will amount to impinging the powers of the Legislature violating Art. 187(l). In the affidavit filed in support of the petition, the petitioner has extracted the speech made by Dr. B. R. Ambedkar in the Constituent Assembly regarding the need and necessity for creating a separate secretariat for the Legislature.
4. While the petitioner's anxiety to preserve the dignity of the Legislature and the due observance of the provisions of the Constitution is fully understandable; I am afraid the petitioner has rushed to Court without taking a comprehensive look of matters. Art. 187(l) of the Constitution reads as follows :
(1)The House or each House of the Legislature of a State shall have a separate secretarial staff:
Provided that nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of such Legislature.
(2)The Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the Secretarial staff of the House or Houses of the Legislature of the State.
(3) Until provision is made by the Legislature of the State under Cl. (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 conditions of service of persons appointed, to the secretarial staff of the 4-ssembly or the Council, and any rule so made shall have effect subject to the provisions of any law made under the said clause.'On a reading of that Article, it may be seen that the House of a State Legislature, or each of the two Houses in such of those States where bicameral legislature is existent, is enjoined to have a separate Secretarial staff. The question of the Executive usurping the functions of the Legislature will arise only where the Legislature has constituted a separate secretarial staff in exercise of its powers under Art. 187(l). Where no such secretariat has been constituted, there is no question whatever of an infringement of the powers of the Legislature by the Executive. This position is made clear by Cls. 2 and 3 of Art. 187. While Cl. 2 provides that the Legislature may, by law, regulate the recruitment and conditions of service etc., of persons appointed to the staff of the Legislative secretariat, Cl. 3 provides that until provision is made by the Legislature in respect of those matters, it is open to the Governor, after consultation with the Presiding Officer of the House, to make rules regarding the recruitment and conditions of service of persons appointed to the Secretariat of the Legislature. Learned Counsel for the petitioner conceded that no Secretariat for the Legislature had been constituted when the writ petition was filed, and it is subsequently the Legislature has constituted a secretariat for it under Art. 187(l). Hence, prior to the constitution of the Secretariat of the Legislature, Cl. 3 of Art. 187 governed the situation and the impugned order, far from being unconstitutional, will be perfectly in order.
5. Secondly, the petitioner has failed to see that even before the impugned order was passed, the designation of the first respondent was 'Secretary to Government, Legislative Assembly Department.' Under the impugned order he has been designated as Commissioner and Secretary to Government, Legislative Assembly Department, It may therefore be seen that only the words, 'Commissioner and' have been added to the designation already given to the first respondent. It is therefore illogical for the petitioner to contend that when the first respondent was Secretary to Government, Legislative Assembly Department, he constituted part of the Legislative Secretariat, but when he was designated Commissioner and Secretary to Government, Legislative Assembly Department, he had ceased to hold his former position and had become an Executive authority governed by Art. 154 of the Constitution.
6. The third infirmity in the petitioners' case is his misconstruction of the impugned order. All that has been done under the impugned order is, to merely upgrade the post held by the respondent equivalent to the post of Commissioner and Secretary to Government. In order to pay higher salary and allowances to the first respondent, the post held by him has been made equivalent to the post of Commissioner and Secretary to Government. This is manifest in the order which says that the upgradition will be effected by creation of a temporary post of Commissioner and Secretary and that the duration of the post will be conterminous so long as the first respondent holds the post. The G. 0., also refers to the order being issued -with the concurrence of the Finance Department, in view of the financial implications involved.
7. For the aforesaid reasons. I am clearly of the view. that the grievance of the petitioner against the impugned G. 0., is misconceived and baseless. There is, therefore, no case for the issue of a rule. The petition will accordingly stand dismissed.
8. Petition dismissed.