187. Secretariat of State Legislature.—(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 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 conditions 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.
Article 187 corresponds to article 98 regarding the secretariats of the Houses of Parliament.
The Secretary of State Legislative Assembly is an Officer of the Government and as such is qualified to be appointed as the Returning Officer at an election held to fill seats in the Rajya Sabha. The position of a person who works as an officer of the Legislature of a State is that even though he belongs under article 187 of Constitution to the staff of the State Legislature, he is still an officer of Government in the broad sense in which the expression “Government” is used in articles 102(1)(a) and 191(1)(a) of the Constitution.
By a notification, the post of Secretary to Government Legislative Assembly Department was upgraded and made equivalent to the post of Commissioner and Secretary to Government Legislative Department in order to pay higher salary and allowances. No Secretariat for the Legislature was constituted when the writ petition challenging the notification was filed, and it was only subsequently the Legislature had constituted a Secretariat for it under article 187(1). Hence, prior to the constitution of the Secretariat for the Legislature, article 187(3) governed the situation. In the circumstances, it cannot be said that the notification is violative of article 187(1). The officer in the latter post had not ceased to hold his former position and had not become an executive authority governed by article 154(1) of the Constitution merely because of the upgrading of his post. The question of executive usurping the functions of the Legislature will arise only where the Legislature has constituted a separate Secretariat staff in exercise of its powers under article 187(1). Where no such Secretariat has been constituted, there is no question whatever of an infringement of the powers of the Legislature by the executive.
Articles 308-314 do not apply to the servants of the Legislature for whom separate provision is made in the Constitution in article 187 as far as the State Legislatures are concerned and article 98 as far as Parliament is concerned.
The Constitution nowhere provides that omission to perform the public function of framing rules under article 187(3) shall be visited with some penalty. Article 187(3) is directory in nature.