The Suresh Kumar precedent

AR Babu

The judgment of the Punjab and Haryana High Court to set aside as unconstitutional the appointment of Suresh Kumar, IAS (retd), as Chief Principal Secretary (CPS) to the Chief Minister, Punjab, appears to be at odds with historical evidence on such appointments in India. Presidents, prime ministers and chief ministers have had their respective staff officers of choice — trusted, honest and efficient. The HC order states that a retired officer cannot occupy the public office of CPS to CM as he cannot be held accountable. As things stand today, the Secretary to the President, Principal Secretary to the Prime Minister, Additional PS to the PM, National Security Adviser, Deputy NSA, CPS to CM Gujarat, and PS to CM, Telengana, are all retired IAS/IPS officers. Even the Secretary, Ministry of Drinking Water and Sanitation, Government of India, a post normally held by serving IAS officers, is a retired IAS officer of the 1981 batch. Some of these officers even sign agreements with other national governments on behalf of Government of India. In the past, luminaries such as PC Alexander, Brijesh Mishra and TKA Nair were all retired IAS/IFS officers assisting the prime ministers as their principal staff officer. 

What is public office?

It will be useful to remember that the public office is that of the Prime Minister, or the Chief Minister and they hold these offices. The staff officers do not have any separate public office. They are appointed to assist the Prime Minister, and in this case the Chief Minister Punjab, in the performance of their duties, to say the least in the disposal of files and papers received in PMO/ CMO.

The case of CPS to CM

In the present case, the office of the CPS to CM is not a public office. It is the public office of Chief Minister, occupied by Amarinder Singh, who had appointed Suresh Kumar as his Principal Staff Officer to assist him. He was appointed on a contract co-terminous with the term of the Chief Minister. It is not and cannot be denied that the Chief Minster is competent to appoint a retired IAS officer as his Principal Staff Officer with the approval of the Council of Ministers. 

Rules of business: Such an appointment is surely guided by the Rules of Business approved and notified by the State Governor under Article 166 of the Constitution. These rules clearly state which files are to be submitted to the Governor. As per these rules, contractual appointments are approved by the Council of Ministers and thereafter — individual files are not sent to the Governor. The agenda and minutes of the meetings of the Council of Ministers are sent to the Governor. This was done in the case of Suresh Kumar also. Even in the Government of India, the Appointments Committee headed by the Prime Minster makes such appointments and orders are issued in the name of competent authority. Individual files are not sent to the President of India.

Terms of appointment: The terms and conditions of the appointment of Suresh Kumar state that he will be paid monthly emoluments and allowed other perks for his contractual assignment equivalent to those allowed to the Cabinet Secretary in the Government of India, minus the pension paid to him. He was not made Cabinet Secretary. Such equivalence made it easy for the Secretariat to calculate his compensation easily, of course with a distinction. During the previous regime in Punjab, a junior retired IAS officer was appointed Principal Secretary to Deputy CM with full salary equivalent to the Chief Secretary without deducting pension, ignoring the rules on the matter.

Distribution of work: The Chief Minister of Punjab issued an order, as an internal Standing Order of his office, ie the CMO, and not of any department or portfolio, distributing work and departments amongst the various staff officers, one of whom is Suresh Kumar, CPS to CM. In addition, unlike the past, it is also clarified in this order who all can record orders/observations/comments of CM and authenticate these on the files before these were returned to the departments/ministries concerned so that there was no doubt about the genuineness of the orders passed by the CM and recorded by the staff officers. Three staff officers, namely Suresh Kumar, Tejveer Singh and Gurkirat Singh, were authorised to sign on files. Further, for the smooth and transparent functioning and disposal of government business, the order clarifies that Suresh Kumar, CPS, will contact the CM on phone, if he is traveling to take his orders on any urgent matter or situation and record and convey the same to the authorities concerned. Such files were to be shown to CM on his return. 

This does not imply that the state cabinet ministers cannot do that. Perhaps, they also do that qua subjects concerning their respective portfolios but for the portfolios with CM and other unforeseen pressing situations, if the office of CM requires some order or guidance, this to be done as per this procedure laid down in the internal standing order of the Office of Chief Minister, which is not a delegation order. It is actually an order distributing and assigning the work among various staff officers and not an order delegating any powers and authority. No staff officer passes any substantive order; instead they record and convey orders of CM.

Flawed judgment

So far, conventional wisdom held these processes, procedures and structures of functioning of PMO and CMOs as a sound working arrangement, given the complexities of governance in a democratic system. Suresh Kumar's case has been elaborately mentioned in an order of the Chief Minister, but it has not been adequately explained and understood in the proceedings challenging the appointment of CPS to CM. The high court judgment is flawed and has had the effect of causing needless suspicion on the functioning of an elected government in the state.

(AR Babu is a psuedonym)