The Government of Andhra Pradesh has approached the Supreme Court against the High Court order which reinstated N Ramesh Kumar as the State Election Commissioner.
The Andhra Pradesh High Court has quashed the April 10, Ordinance which brought about the following amendments to the Andhra Pradesh Panchayat Raj Act, 1994:
· Only a retired High Court Judge could be appointed as the State Election Commissioner. Prior to the amendment. The post could be held by a retired bureaucrat;
· The term of the SEC which was earlier for a period of 5 years was reduces to three years;
· The term of the existing SEC was brought to an end; and
· A new SEC was appointed.
The Andhra Pradesh Government has however submitted that “the changes were necessary for the purpose of bringing in transparency and efficiency in the functioning of the State Election Commission and an inordinate delay in conducting the local body elections.”
On the High Court’s ruling that the State does not have the power to appoint an SEC under Articles 243K and 243ZA of the Constitution of India and that such power of appointment is vested in the Governor personally, the State Government has submitted that after having a bare perusal of the constitutional Scheme including Article 243K and 243ZA it is clear that the power of appointing the Chief Election Commissioner is necessarily to be exercised by the Governor upon aid and advice of the Council of Ministers and not otherwise.
The State Government has further submitted that High Court’s observation that the Tenure of the SEC being a fixed tenure, it cannot be curtailed is erroneous and is liable to be set aside because Article 243k and 243ZA empower the State Legislature to provide for the conditions of service and tenure of office of the SEC.
It has further been submitted that the finding of the High Court that the legislation was retrospective merely because it resulted in cessation of the term of the EC is unsustainable because it is a settled law that a Statute is not retrospective merely because it affects existing rights nor is it retrospective merely because a part of the requisite for its action is drawn from a time antecedent to its passing as has been laid down in the case of State Bank’s Staff Union (Madra Circle) v. Union of India and ors.
On the High Court ruling that the power of appointment is stated to be that of the Governor and not of the State, the State Government has submitted even the previous SEC was appointed on the recommendation of the then Government. If the finding of the High Court in relation to the power of appointment is correct, the appointment of the previous SEC would be equally vitiated on that ground.
Stating the judgement to be contradictory, the State Government has submitted that“the power of appointment of the SEC is that of the Governor in his personal discretion and striking down the appointment of the new incumbent on that ground, the High Court has surprisingly directed the reinstatement of the previous SEC even though his appointment admittedly suffers from the same alleged vice.”
The Government has also pointed out that no notice had been served by the High Court to the Governor and the Chief Minister, however they were made parties to the case.
-India Legal Bureau