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 Justice 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.
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.
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.
The court declared,
“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”
