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'Ordinance Brought Only To Appoint SEC Of CM's Choice, That Too A Former HC Judge Which Is Against Constitutional Morality': Andhra Pradesh HC [Read Judgment]

Mehal Jain
30 May 2020 2:31 PM GMT
Ordinance Brought Only To Appoint SEC Of CMs Choice, That Too A Former HC Judge Which Is Against Constitutional Morality: Andhra Pradesh HC [Read Judgment]
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The Andhra Pradesh High Court on Friday struck down an Ordinance promulgated on April 10 curtailing the tenure of the State Election Commissioner from five to three years.

The court also quashed a Government Order appointing retired judge V Kanagaraj as the new State Election Commissioner. Justice Kanagaraj, a former judge of the Madras High Court, had assumed charge as the SEC on April 11, replacing Ramesh Kumar. It restored retired bureaucrat Nimmagadda Ramesh Kumar as the SEC.

The High Court delivered the judgment on a batch of writ petitions, including the one by the aggrieved Ramesh Kumar, challenging the Ordinance and the appointment of a new SEC.

All the petitions have been filed challenging the Andhra Pradesh Panchayat Raj (Second Amendment) Ordinance, 2020, promulgated by the Governor of Andhra Pradesh, substituting Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994. The G.O. of the Panchayat Raj and Rural Development (E&R) Department, dated April 10, has also been assailed, by which the Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service, Tenure of State Election Commissioner) Rules, 2020 were notified replacing the existing Andhra Pradesh Panchayat Raj (Salaries and Allowances and Conditions of Service of State Election Commissioner) Rules, 1994.

The consequential notification dated April 10, directing that the incumbent State Election Commissioner Dr. N. Ramesh Kumar, (referred to as, 'Mr.A') ceases to hold the office prior to completion of the tenure, and another G.O. dated April 11, appointing Justice V. Kanagaraj (referred to as, Mr.B'), as SEC of Andhra Pradesh, for a period of three years from the date of assumption of office, in consequence to cessation of office by Mr.A have also been assailed.

In the judgment pronounced, the Chief Justice-led bench arrived at the following conclusion-

1) The appointment of the State Election Commissioner can be made by the Governor under his discretionary power under Article 243K(1) of the Constitution of India.

2) The expression 'conditions of service and tenure of office' in Article 243K(2) of the Constitution do not include 'appointment'. On appointment and holding the post of the State Election Commissioner, the conditions of service and tenure of office may be as per any Law made by the State Legislature or as determined by the Rules made by the Governor.

3) The State Government may have power only with respect to make Legislation in terms of 'conditions of service and tenure of office'. For appointment of State Election Commissioner, the State Legislature does not have power to propose or prescribe the pre-eligibility and manner of the appointment by the aid and advice of Council of Ministers to promulgate an Ordinance in this regard.

4) The State Election Commissioner appointed in exercise of powers under Section 200 of the A.P.Panchayat Raj Act, 1994 cannot function for superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities and the Municipal Corporations. The appointment must be made by the Governor in exercise of the power under Article 243K of the Constitution of India.

5) The State Government is required to re-visit the definitions of Section 2(39) and 2(40) and provisions of Section 200 of the A.P.Panchayat Raj Act, 1994 and to take necessary decision in accordance with the spirit of the Constitution as expeditiously as possible.

6) The satisfaction as recorded by the Governor in exercise of the power under Article 213(1) of the Constitution of India in the facts of the present case is not in the existing circumstances which render it necessary for him to take immediate action. The power so exercised is actuated by oblique reasons and on extraneous grounds, without having any material for the satisfaction of the Governor.

7) The promulgated Ordinance is hereby set-aside and as it is actuated by fraud on power and does not qualify the test of rationality and reasonableness specified in Article 14 of the Constitution of India. Consequent thereto, the Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service, Tenure of State Election Commissioner) Rules, 2020 notified vide G.O.Ms.No.617 dated 10.04.2020 are also set-aside.

8) In as much as the appointment of Dr.N.Ramesh Kumar (Mr.A) as State Election Commissioner is made for a tenure of five years vide G.O.Ms.No.11 dated 30.01.2016 from the date of his assumption of office, he is having vested right which cannot be taken away without completion of the tenure for which he was appointed. Sub-section (5) of Section 200 of the A.P.Panchayat Raj Act, 1994 introduced by Ordinance No.5 of 2020 dated 10.04.2020 cannot take away his subsisting right. The cessation to hold the office by Dr.N.Ramesh Kumar (Mr.A) as State Election Commissioner as directed by way of Notification vide G.O.Ms.No.618 dated 10.04.2020 is not in accordance with law as the State Election Commissioner can only be removed by following the procedure as prescribed under proviso to Article 243K(2) of the Constitution of India.

9) The petitions filed by the other petitioners and the PILs challenging the Ordinance, the consequential Notifications notifying the New Rules, 2020 are maintainable in view of the discussion made in Question No.7.

Questions of Law and Fact and the Observations of the Court

The Division Bench tackled the following questions of law-

QUESTION No.1: What are the Constitutional provisions governing the appointment of the SEC in contra-distinction to the provisions governing appointment of the CEC; and whether the expressions 'Conditions of service' and 'Tenure of office' specified in Article 243K(2) of the Constitution include 'Appointment'?

In answering the question, the bench examined Article 324 ('Superintendence, direction and control of elections to be vested in an Election Commission'), Article 243K ('Elections to the Panchayats') and Article 243ZA ('Elections to the Municipalities')

On comparison, it became clear to the bench that the power of appointment of CEC given to the President, under Article 324(2), is subject to any law made by the Parliament in that behalf, but the power so given to the Governor to make appointment of SEC, under Article 243K(1), is at his discretion, not subject to any law made in that behalf by the State Legislature. Further, Clause (2) of Article 243K and Clause (5) of Article 324 provide for the conditions of service and tenure of the office of the SEC and CEC respectively. Therefore, it safely understood that the power of appointment, as conferred under Article 324(2) to the President of India and Article 243K(1) to the Governor of the State, are to be exercised in different manner. But, for conditions of service and tenure, respective legislative body is having competence to make law, or otherwise it may be determined by the President or the Governor, as the case may be.

"The intention of the framers of the Constitution was clear that the appointment of the CEC and Election Commissioners must be made by the President subject to the law made by the Parliament and not on the basis of the recommendation of the Prime Minister; thereby it should remain uninfluenced by the ideology or decision of the Government. However, the said amendment has been adopted for, and appointment of CEC is decided to be guided by the law made by the Parliament", the court opined.

It observed, for appointment of CEC, no law is made by the Parliament and what may be a fair procedure of appointment is yet to be decided by the Supreme Court in a pending writ petition. Coming to the appointment of the SEC, it is necessary to explain that while using the words and phraseology 'vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor' in Article 243K of the Constitution, the intention of the Constitution is very clear that the appointment of SEC shall be made as per discretion on the Governor.

"Here, it is necessary to understand that under the Constitution, discretion has not been conferred to the President of India, but conferred so to the Governor. it is apparent that the framers of the Constitution gave discretionary power to the Governor as specified in Article 163 of the Constitution but not given to the President of India", the decision reads.

On perusal of the aforesaid 163, the bench feels it is clear that the Council of Ministers with the Chief Minister as the Head have to aid and advise the Governor in exercise of his functions, except in so far as he is by or under the Constitution, is required to exercise his functions or any of them in his discretion.

It was clear to the Court that for more convenient transaction of the business of the Government of the State, to which he is the Head of the Executive, the Rules are required to be framed for allocation of such business among the Ministers. It is clarified that the matters in which the Governor is by or under the Constitution is required to act in his discretion, would not be covered by those Rules.

The Governor of the State of Andhra Pradesh, in exercise of the power under Clauses (2) and (3) of Article 166 of the Constitution, has formulated the Rules which are known as the Andhra Pradesh Government Business rules and Secretariat Instructions. All cases referred to in Second Schedule of the Rules shall be brought up before the Governor as per the recommendations of the Council of Ministers or otherwise on the special request of the Minister of the Department with the approval of the Chief Minister.

The subject matter 'appointment of Election Commissioner' has not been specified in Schedule-II of the Business Rules and no special request is on record produced before us. It was safely concluded that the appointment of SEC has to be made by the Governor in exercise of the power under Article 243K(1) at his discretion and not on the aid and advise of the Council of Ministers.

It was concluded that in the matter of discretionary power to appoint the SEC in exercise of the power under Articles 243K(1) and 243ZA of the Constitution, the Governor is not required to take the aid and advise of the Council of Ministers in view of the Business Rules. The manner of appointment of SEC is based on discretion uninfluenced by the proposal of the Council of Ministers and Chief Minister. In any case, the appointment of SEC cannot be made by the Governor as per the proposal made by the Chief Minister.

The provisions of Articles 243K(2) and 324(5) of the Constitution specify the expression 'conditions of service and 'tenure', which shall be as per any law made by the Legislature or Parliament and in the absence of such law, as may be determined by the Governor or the President. It is clear that after appointment, to regulate the conditions of service of a person, who hold the post may be determined by rule and it would be included in the said expression.

The court opined that reducing the tenure would not fall within the purview of mischief for removal of the incumbent from the office. While referring the conditions of service and tenure, interpretation is made that the tenure is different than conditions of service and in case tenure has been changed by framing of Rules, then it would not form part of conditions of service as specified in Article 243K(2) of the Constitution. Therefore, the question of changing of the tenure of the service to his disadvantage after appointment does not arise.

Under Rule 3 of the Old Rules, 1994, it is clarified that term of the office of the SEC shall be five years from the date of assumption of his office as Commissioner. The Legislature or the Governor are well aware that the Rules specifying the conditions of service, the tenure of SEC is prescribed. Therefore, the 'conditions of service and tenure' as specified in Article 324(5) and Article 243K(2) of the Constitution do not include the appointment or eligibility or manner of appointment of either CEC or SEC as specified under Articles 324(2) and 243K(1) of the Constitution, and it would include the conditions of service after appointment.

Both Article 243K(2) and Article 324(5) of the Constitution contain a proviso, which deals with the removal of the SEC and CEC respectively and impose a restraint to change the conditions of service after their appointment. As per the proviso to Article 324(5) of the Constitution, in case of removal of the CEC, the procedure as prescribed for removal of a Judge of the Supreme Court of India under Article 124(4) of the Constitution is to be followed; while in case of SEC, as per the proviso to Article 243K(2) of the Constitution, the procedure as prescribed for removal of a Judge of a High Court is to be followed, i.e., as specified in Article 217(1) of the Constitution. Thus, removal of CEC or SEC, as the case may be, can only be permissible by way of impeachment and no other way is expressly specified in the Constitution.

Thus, in view of the discussion made hereinabove, it was concluded that the connotation specified under Article 243K(4) and 243ZA(2) of the Constitution to make law with respect to the matters relating to or in connection with the elections of the Panchayats and Municipalities would not include the matters relating to appointment of SEC as specified under Article 243K(1) or the conditions of service and tenure of the office of the SEC as specified under Article 243K(2) of the Constitution. Further, on the above analysis, it is clear that Article 243K(1) deals with the arena of appointment of the Election Commissioner; Articles 243K(2) and 324(5) deal with "conditions of service and tenure of office" and removal of the Election Commissioner; Articles 243K(3) and 324(6) deal with the assistance that may be taken by the CEC and SEC from the Governor and the President, as the case may be, in the matter of discharge of functions by the respective Election Commissions. Article 243K(4) and 243ZA(2) provide power to the State Legislature to make law with respect to elections of the Panchayats and Municipalities subject to the provisions of the Constitution similar to Articles 327 and 328 of the Constitution. Therefore, all the clauses of the Articles 324, 243K and 243ZA as compared hereinabove, are independent and do not overlap the arena of other as per the spirit of the Constitution.

"there is no scintilla of doubt that the functions of the Election Commission should not be affected by the influence of the Executive fiat and it must be independent so as to maintain the basic structure, independence of Commission to safeguard democracy in the Country by holding free and fair elections. Therefore, the power of appointment as discussed above has been given on the discretion of the Governor but not on the Executive fiat of the Government. The conditions of service and tenure of office so prescribed has been checked by way of proviso specifying the manner of removal, as provided under Articles 243K(2) and 324(5) of the Constitution", said the court

"the appointment of the CEC is under the law made by the Parliament but for SEC on discretion of Governor. The Rules made by the Governor or President determine the conditions of service and tenure of the SEC and CEC respectively. They have independent status unaffected by Executive fiat because the democracy is part of the basic structure of the Constitution of India. Their appointment should remain uninfluenced by the political interference, therefore, a specific procedure for removal is prescribed. In the functioning of CEC and SEC, the intervention of the Central Government or the State Government, as the case may be, has been restricted. Therefore, they have to proceed in the matter of elections, taking assistance from the President or Governor, as the case may be, or otherwise through Courts", it was held.

Question No.2: What is the statutory friction with respect to SEC in the APPR Act, the Andhra Pradesh Municipalities Act, 1965 and the Greater Hyderabad Municipal Corporation Act, 1955?

The Court said that Comparing the definition of the State Election Commission as specified in the APPR Act and also specified in the APMC Act, GHMC Act, the difference is substantial by which the APMC Act and GHMC Act acknowledge the Election Commission constituted and appointed pursuant to under Article 243K of the Constitution, it do not recognize the Election Commission constituted under Section 2(39) and appointed under Section 2(40) read with Section 200 of the APPR Act. Therefore, SEC appointed under Article 243K of the Constitution can discharge functions of State Election Commission to supervise and conduct the elections of the Municipalities and Corporations.

"The appointment of Mr.A was made by the Governor in exercise of the power under Article 243K of the Constitution read with Sub-Section (2) of Section 200 of the APPR Act. But, while the appointment of Mr.B is made by the Governor vide notification dated 11.04.2020, in terms of Ordinance No.5 of 2020 amending Section 200 of the APPR Act alike an employer. The appointment of Mr.B is not in exercise of the power under Article 243K of the Constitution, however, Mr.B cannot discharge the functions of the SEC, for superintendence, direction and control of preparation of electoral rolls for, and conduct of all the elections of the Municipalities or Municipal Corporations, without his appointment under Article 243ZA and 243K(1) of the Constitution", the bench ruled.

It held that the appointment, if any, made by the Governor in exercise of the powers conferred under the statute ignoring the Constitutional provisions cannot be recognized valid appointment of SEC for the Municipalities and Municipal Corporations under the law.

"It is not a matter in which while applying to the Court or any quasi-judicial authority, a wrong provision has been quoted asking relief in the process of adjudication. The present matter related to an appointment of a Constitutional post holder having immunity under Constitution, to which an appointment is to be made by the Governor under the Constitution and not under statute, however in the said contingency, reference to exercise of the source of power derived under the Constitution must be made in the appointment order, otherwise such appointment would be invalid", the bench said.

Question No.3: Whether the power exercised by the Council of Ministers extending aid and advice to the Governor in promulgation of Ordinance prescribing pre-qualification and manner of appointment of SEC constitute fraud; and the State Legislature is having competence to make any law in this regard?

It was clear to the court that as per the record when file was put before the Governor, the State Government has appraised the source of power vide Entry No.5 List II of Schedule 7 of the Constitution to bring Ordinance on the subject

The scope of Entry No.5 is visible from its construction by which it confers power on the State legislature to make law regarding the "constitution and powers" of the municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. Thus, the matter pertaining to appointment of the SEC shall not come within the ambit of the said Entry No.5. In fact, it only strengthen the bodies of local self-Government by their 'constitution and powers'...The approval by the Governor of the impugned Ordinance on the said subject under Articles 163(1) and 166(3) of the Constitution read with the provisions of the Business Rules, is without authority which would amount to fraud on power.", the court declared.

Another source of power to the State Legislature for appointment of SEC may possibly be in Articles 243K(4) and 243ZA(2) of the Constitution at par to Articles 327 and 328 of the Constitution, which are in respect to CEC. "herefore, the power under Article 243K(4) and 243ZA(2) of the Constitution was given to the State Legislature to enact law with respect to the matters relating to and in connection with the election of the Panchayats on the said subject. However, the said power is subject to the provisions of this Constitution. The constitution of the State Election Commission and appointment of SEC is not a matter relating to or in connection with the elections of the Panchayats, as clear from Article 243K(1) of the Constitution. Therefore, it would not fall within the scope of Article 243K(4) of the Constitution", held the bench,

The third source to the State Legislature to make a provision by any law in the subject matter is in Article 243K(2) of the Constitution. "The said Article confers power to make any law to the conditions of service and tenure of office of the SEC. The constitution and appointment of SEC is a function of the Governor. However, on constitution of the State Election Commission, appointment of SEC be made by the Governor, and the conditions of service and tenure of office held by the SEC, shall be subject to any law made by the State Legislature or otherwise determined by the Governor. Thus, it also does not confer any power to make law regarding pre-eligibility and manner of appointment of the SEC", announced the court.

"The attempt made by the State Legislature to bring the law on the subject appointment, manner, eligibility etc., of the SEC, is beyond the Legislative competence of the State", it finally held.

QUESTION No.4: Whether in the facts of the case, any circumstances exist for satisfaction of the Governor to take immediate action to promulgate the impugned Ordinance and issuance of consequential notifications, or is it actuated by oblique reasons and on extraneous grounds?

"It is clear that when the Legislature is not in session, circumstances may arise which render it necessary to take immediate action, and in such situation, in order to see that the public interest may not suffer by reason of inability of the Legislature to make the law, the power has been conferred to the Governor. The said power cannot be allowed to be perverted to serve political ends, contrary to all democratic norms", the bench expressed.

It noted that, however, in the present case, the State Legislature does not have the competence to bring the law on the point of appointment and eligibility of SEC, and the issue of tenure does not qualify the test of class legislation specified in Article 14 of the Constitution. In addition thereto, the statements of the Chief Minister and other Ministers, and in the manner in which the department has processed the file to promulgate the impugned Ordinance, through Council of Ministers and signed by the same persons, indicate that they have decided to remove Mr.A, due to not having connivance, however, brought narcissist Ordinance to remove him and to bring the person of their choice. Therefore, the promulgation of Ordinance is actuated by oblique reason and on extraneous grounds.

"Looking to the aforesaid events, in our considered opinion, there is no public interest or constitutional necessity exist to take immediate action by the Governor for promulgation of Ordinance. In the manner the events took place, it indicates the desirability of the State Government to bring the Ordinance in the name of electoral reforms to remove the incumbent SEC, Mr.A and the power so exercised by the Governor under Article 213 of the Constitution cannot be said to be based on the satisfaction of the circumstances exist which may render it necessary for him to take immediate action", the court observed.

It noted that when there is a complaint made by the SEC against the State Government to the Union of India, which is controverted by other side, it may be a ground to the State Government to refer the issue, as required under the proviso to Article 243K(2) of the Constitution, for removal of the SEC on the ground of proved misbehaviour or incapacity through impeachment. But, in the present case, the State Government has resorted to promulgation of the impugned Ordinance, changing the pre-eligibility for appointment and tenure, to remove the SEC.

"In the matter of appointment and determining pre-eligibility for appointment, the State Government does not have power to bring any Ordinance, therefore, it is a fraud on power under the Constitution. In fact, the action has been taken merely on the desirability of the State Government, without there being any public interest or constitutional necessity warranting exercise of the power for promulgation of the impugned Ordinance...As per the record produced from the office of the Governor, the State Government want to initiate reforms with respect to appointment, eligibility and tenure of the SEC. Nothing is brought on record to show that the tenure of the SEC is going to effect the constitutional spirit or public interest. In such a case, there is no justification to cut down the tenure and in particular to direct Mr.A to cease to hold the office of the SEC. In the facts of the case, there is no material to justify that the circumstances exist which render it necessary to the Governor to take immediate action. Therefore, promulgation of the impugned Ordinance does not qualify the test of second part of Article 213 of the Constitution", the court held.

Question No.5: Whether the term 'cease to hold office' as per Sub- section (5) of Section 200 of the APPR Act in the Ordinance may lead to removal of Mr.A, SEC, and is it permissible ignoring immunity prescribed under the Constitution?

Sub-section (5) contains some important ingredients, that on commencement of the Ordinance, 'any person appointed as State Election Commissioner and holding office as such shall cease to hold office', meaning thereby, it applies to the SEC holding the office in present shall cease to hold his office. "Therefore, there cannot be any doubt to say that the post of SEC, fall in a category in which doctrine of pleasure do not apply and the bearer of the post is having immunity prescribed from removal. Thus, the SEC cannot be removed at the pleasure of the Governor or by an act of Executive fiat from the said post without following the procedure established by law. he position of the SEC is some what similar to the Member of the Public Service Commission. Therefore, such post holders cannot be equated at par to the other Constitutional post holders working under the pleasure of the Governor or the employees working under the pleasure with restriction, under Central Government, State Government or Union Territory", observed the bench.

It further noted that On appointment of the SEC, being constitutional post holder, immunity has been given due to the responsibility of higher echelon to hold free and fair elections. so far as preparation of electoral rolls, superintendence and to conduct the elections, the status of SEC is at par to CEC. Simultaneously, the protection provided to CEC and SEC against their removal is also similar. The removal of SEC can only be possible by way of the proviso to Article 243K(2) of the Constitution, not by way of promulgation of any statute by cut-down the tenure so prescribed for his appointment on the date of holding the office.

"By promulgation of the impugned Ordinance, from the date of coming into force of the same, inter alia stating that the person appointed as SEC shall cease to hold the office, would amount to his removal. We also conclude that the word cease to hold the office is synonym to termination and removal from the office and adding of Sub-section (5) of Section 200 of the APPR Act in the impugned Ordinance is constitutionally impermissible in particular, looking to the immunity specified given by the provision of Article 243K(2) of the Constitution", said the bench.

The court, moreover, noted that the Governor, in exercise of power under Section 200(3) of the APPR Act, framed the Old Rules, 1994 wherein, tenure was prescribed, and which were in vogue since last 26 years. Abruptly the State Legislature in the name of electoral reform got promulgated the impugned Ordinance, cut down the tenure of incumbent SEC, appointed under the Old Rules, 1994, and by virtue of the same, they want to cease him to hold the office. "The said recourse, in our considered opinion, is wholly arbitrary, discriminatory and capricious exercise of power contrary to constitutional spirit. Therefore, the argument regarding promulgation of Ordinance for removal of SEC as a part of electoral reforms is not justified, hence rejected", it declared.

"After appointment of the SEC under the Constitution, his removal can only be under the proviso to Article 243K and he cannot be discontinued by virtue of the impugned Ordinance on account of ceasing of the office", the court further announced.

"We can safely hold that the legislation brought in the present case is only to single out Mr.A as SEC and to appoint a person of their choice as offered by the Chief Minister to the Governor, without any basis that too a person who is of 77 years of age and retired 15 years back as a Judge of Madras High Court which is against the Constitutional morality. In such circumstances, in our considered opinion, how far free and fair election can be expected by such person, though it is the essence of the democracy by bringing such legislation is not appealable to us", the bench surmised.

Besides, the court reflected that by the impugned Ordinance and the New Rules, 2020, the said tenure has been reduced to three years extendable further for three years on re-consideration. Simultaneously, on the issue of eligibility for appointment would be as a Judge of High Court in place of the post not less than the rank of Principal Secretary to the Government. Thus, by adding these qualifications, the word 'cessation' used in the context, have its applicability retrospectively or prospectively is required to be examined.

"It is a settled law that any amendment to the provision of any statute may not be given retrospective effect and such amendment is deemed to be prospective. The analogy behind was that statute cannot take away the vested right or subsisting right of any person by such amendment", it held.

Question No.6 : Whether the appointment of Mr.A made for a tenure of five years as SEC, may confer any vested right to continue him upto such term amidst promulgation of the impugned Ordinance?

The Court observed that in the conditions of service, the term of SEC was specified as five (5) years. The legislators or the Governor are well aware that the Rules specifying the conditions of service and tenure, in exercise of power under Sub-section (3) of Section 200 of the APPR Act, are in existence. There was no occasion to them to interpret it differently or making tenure disjunctive from conditions of service. But, because they want to reduce it due to oblique reasons, an attempt to reduce the tenure, by promulgation of Ordinance, has been made.

It was clear to the bench that the tenure of the SEC so prescribed for a period of five year can only be curtailed by way of impeachment, in case the SEC is required to be removed prior to the completion of tenure so prescribed. Without following the said procedure, passing an order by the Secretary to the Government, in consequence of the impugned Ordinance, directing cessation of the office of Mr.A is contrary to the law and such order of the Secretary itself is void ab initio and invalidate the action of the State Government.

Question No.7 : Whether the petitioners in the PILs ((who are either advocate, politician, agriculturist or citizens) and the other writ petitions have locus standi to maintain the petitions challenging the impugned Ordinance and consequential notifications along with the writ petition filed by the aggrieved person?

"It is not in dispute that the SEC holds a constitutional post and his appointment was in exercise of the power under Article 243K of the Constitution. Promulgation of Ordinance has been made emphasizing the eligibility for appointment and its tenure violating the immunity prescribed in the proviso of Article 243K of the Constitution for removal of SEC. By bringing the impugned Ordinance, the eligibility for appointment has been changed, which is not a domain or in the legislative competence of the State Legislature and the tenure has also been prescribed contrary to the intention of the framers of the Constitution as could be derived from the debates of the Constituent Assembly discussed above, as well the Report of Task Force Committee without any basis. More surprisingly, bringing such legislation and by incorporating Sub-section (5) in Section 200 of the APPR Act, Mr.A, who can hold the post of SEC for five (5) years, has been ceased to hold the office", narrates the bench.

It was of the strict opinion that In such circumstances, the plea of maintainability does not lie in the mouth of the State Government or the Election Commission. Such plea can be said to be wholly unwarranted, in particular, when the attack is being made in the facts of the case on the independence of the SEC, who has to conduct free and fair elections of the Panchayats and Municipalities in the State.

"The severity of the action of the authorities is that the person appointed under the Constitution has been removed in consequence of the said legislation by the Secretary of the Department without signature of the Governor on the file, but order is issued in his name. The highly objectionable part in the case is that the appointment of the newly incumbent i.e., Mr.B has been made by the Governor in exercise of the power under Section 200 of the APPR Act and not under Article 243K(1) of the Constitution, that too, a person of more than 77 years of age, merely on supply of bio-data by the Chief Minister to the Governor. In such a case, how far free and fair election of the Panchayats and Municipalities can be held in the State. As discussed, Mr.B cannot function as SEC for holding the elections of the Municipalities and Municipal Corporations under the APMC Act as well as the GHMC Act, looking to the definition of State Election Commission as specified in those acts. Thus, when such an unconstitutional act is challenged in the writ petitions and PILs, the attempt of the respondents on the ground of maintainability or locus, is frivolous and it is hereby rejected", it was finally declared.

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