In this elaborate judgment, AP High Court set-aside the Ordinance 5 of 2020 via which the incumbent YSRCP Government has reduced the tenure of the State Election Commissioner Sri N Ramesh Kumar which is violative of Article 243K(2) and on many other grounds. It also quashed many subsequent GOs in relation to this mess up.
Some of the juicy paragraphs follow
From Para 76,
76. After hearing the learned Counsel representing the respective parties on both sides, it is seen from the record that the appointment of Mr.A as SEC vide notification dated 30.01.2016 has been ordered to be ceased on account of issuance of impugned ordinance and by the consequential notifications simultaneously Mr.B has been appointed as SEC by the Governor. Therefore, considering the arguments so advanced by the Counsel representing the parties, in our considered opinion, following questions arises for consideration:
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’?
2) What is the statutory friction with respect to SEC in the APPR Act, the Andhra Pradesh Municipalities Act, 1965 (for short, ‘the APMC Act’) and the Greater Hyderabad Municipal Corporation Act, 1955 (for short, ‘the GHMC Act’)?
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?
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?
5) Whether the term ‘ceased to hold office’ as per Subsection (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?
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?
7) Whether the petitioners in the PILs 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?
From Paras 185 and 186,
185. This Court, vide order 14.11.2019, observed that respondent No.3 therein (Principal Secretary, Panchayat Raj Department) has violated the constitutional mandate and previous directions of the Court by taking lame excuses, and also observed that the Election Commission failed to exercise the power conferred on it as per the judgment of Hon’ble the Supreme Court in Kishansing Tomar (supra), however, directed the Chief Secretary of the State to file her affidavit on all the issues on or before 20.11.2019 and accordingly, the counter-affidavits have been filed. On 21.11.2019, this Court gave a direction to the State Government to finalize the reservations for conducting elections of the three tier system i.e., Gram Panchayats, Mandal Parishads and Zilla Parishads on or before 03.01.2020. After the said order and on fixing the date, the State Government vide G.O.Ms.No.176, PR & RD, dated 28.12.2019 decided the percentage of reservations for conducting the elections. On issuance of the said G.O., issue of inappropriate reservation cropped up and various petitions were filed vide W.P.(PIL) No.2 of 2020 and batch, in which stay was not granted by this High Court. In the said scenario, the petitioners have approached Hon’ble the Supreme Court by filing Special Leave Petition (Civil) Diary No: 1314 of 2020 which was disposed vide order dated 15.01.2020 granting stay and requesting the High Court to decide the matter within four weeks. Thus, all those matters were taken up and decided on 02.03.2020, declaring the percentage of reservations for Backward Classes as ultra vires.
186. The respondents, criticising the functioning of the Election Commission, filed the judgments of S.Fakruddin (supra), Channala Ramachandra Rao (supra) and Prakasam District Sarpanchas Association (supra), raising objection in the counter affidavit that functioning of the Election Commission was questioned by the Court. After going through those judgments, in
our view, there is no stricture regarding misbehaviour or incapacity of the SEC and that too, against Mr.A. As discussed above, not conducting elections in time is not alone a fault of the SEC, in fact, the State Government is also equally responsible. In this view of the matter, we are not in agreement to the defence as taken by the respondents that the Court has criticised the functioning of the present SEC.
From Para 187, (Directions passed to transfer/suspend concerned Police officials who did not control the violence during nominations phase)
187. After the orders passed in W.P(PIL).No.2 of 2020 and batch, on 02.03.2020, the election notification could be issued on 07.03.2020 and 09.03.2020. As per the schedule of elections for MPTCs and ZPTCs, in the first phase, nomination forms were submitted by the candidates. In that process, the SEC apprehended indulgence of the ruling party, because some persons of opposition party were not allowed to fill up the forms to contest the election, due to which violence has been reported and percentage of unanimous election enormously increased. In the previous elections of 2013, the percentage of unanimous election was 2% for MPTC seats and 0.09% for ZPTC seats, which is increased to 24% and 19% respectively in the year 2020, while in the constituency of the Chief Minister, 79% MPTC seats and 76% ZPTC seats declared unanimous. The SEC Mr.A has smelt unfairness with the connivance of the administration and police, however, directed to transfer some Collectors, Superintendents of Police, Deputy Superintendents of Police, and also to suspend one Circle Inspector, but those orders were not complied by the State Government. In the meantime, as per the advisory issued by the World Health Organization on 11.03.2020, Mr.A suspended the elections, postponing it for a period of six weeks or until further orders vide Notification dated 15.03.2020. The said order became a root cause to entire litigation. The State Government, being aggrieved, challenged it before Hon’ble the Supreme Court by filing W.P.(C) No.437 of 2020. The said writ petition was dismissed vide order dated 18.03.2020 with observations that Model Code of Conduct during this period shall not remain in operation and directed that while resuming the process of election, due consultation be made with the State Government, giving liberty to State to continue public welfare activities.
From Para 188, (Personal attacks on SEC; All fit for nothing bozos… LOL. Chief Secretary Ms Neelam couldn’t dispute the above blabberings as the bozos made them publicly on TV channels. Probably, hoped no one can question them. Bozos…)
188. In the meantime, the Chief Minister of Andhra Pradesh, the Speaker of Legislative Assembly, Members of Parliament and Members of Legislative Assembly belonging to the ruling party made various allegations and casted personal aspersions on SEC. Some of the statements and the documents filed along with I.As, are relevant and those are re-produced as thus:
- The statement of the Chief Minister (paper clipping):
“He (SEC) lost his discernment and is reading out the order written by someone else. We did not appoint the State Election Commissioner. Chandrababu Naidu (TDP President and former Chief Minister) appointed a person belonging to his community. Under the pretext of corona virus, he has indefinitely postponed the local body elections. The SEC had neither discussed the matter with the Chief Secretary nor the officials of the Health Department. Only then it can save its reputation and respect. Mr.Naidu may have bestowed upon him the post. Both may belong to the same community. But is it justified to show such discrimination. On one hand, Mr.Kumar citing discretionary powers, postponed the elections indefinitely and on the other transferred the District Collectors and SPs of Guntur and Chittoor. He also transferred the Macherla C.I. How can he transfer the Collectors and SPs unilaterally? Does he have more powers than an elected government? If so, the SEC can rule the State. The police have discharged their duties with utmost sincerity. They have even booked attempt to murder cases. We have brought the SEC issue to the notice of the Governor. The matter will be scaled up to the next level if the State Election Commissioner does not mend his ways.”
- The statement of the Speaker of the Legislative Assembly, Mr.Thammineni Seetharam (video clipping):
“The SEC should be immediately sacked. The President and Governor must interfere. If the Election Commissioner transfers Collectors, Circle Inspectors and SPs, then what the Government do? For what purpose we people are here? Is it for taking donkeys? I clearly stated my opinion. I am not going to sustain any loss in whichever manner anyone receives my words.”
- The Minister of Transport and I & PR, Perni Neni said that the SEC has not taken fair decision. The decision taken for postponing the election is not proper. They shall approach all forums to revert the decision taken by the SEC and he is acting on the instructions of the former Chief Minister affecting the fair process of election, therefore, they should fight and face it.
- In his statement, the Member of Parliament, RajyaSabha, Mr.Vijayasai Reddy has named the SEC, Mr.A in the name of the former Chief Minister, who is assassinating the constitutional bodies and democracy.
- The Minister of Agriculture said that the SEC is connected with TDP and he is taking the system into his hands and acting biased.
From Para 199, (Moving of File to Governor’s office to appoint Mr.B in place of Mr.A just by forwarding biodata; Fattu Bozos moved file of Mr.B first and then moved file for removal of Mr.A – LOL)
199. Referring to the appointment of Mr.B as SEC, File No.4 was moved. As per notings of paragraph No.7 of the File, it was submitted to the Governor through the Chief Secretary, the Minister of PR & RD and the Chief Minister, duly recommending suitable person for appointment as SEC for a tenure of three (3) years, and a draft G.O. format for appointment of SEC with blank name of new person to be appointed as SEC was submitted for approval at 3.29 p.m. on 10.04.2020. On the same day, at 4.02 p.m., the Chief Minister submitted the bio-data of Mr.B to appoint him as SEC. The said proposal was approved and digitally signed by the Governor at 8.54 a.m., on 11.4.2020. Thus, it is clear that the movement of file for removal of Mr.A as SEC i.e., File No.3 was initiated subsequent to processing File No.4 for appointment of new SEC. It is also to be noted that the CV of Mr.B proposing to appoint him as new SEC was submitted by the Chief Minister at 4.02 p.m., prior to it, keeping his name blank, file was processed at 3.29 p.m. on 10.4.2020. While File No.2 relates to issuance of the Rules in consequence of promulgation of the Ordinance vide G.O.Ms.No.617, dated 10.04.2020.
From Para 207, (Overruled judgments being used by ahem Senior Advocates representing State LOL)
207. On the other hand, learned counsel for the respondents have relied upon the judgment of K. Nagaraj (supra), in particular para Nos.31, 32, 33 and 34 of the case, in which the judgments of A.K. Roy (supra) and R.K. Garg (supra) have been considered along with the judgment of High Court of A.P. v. V.V.S. Krishnamurthy137. In the said case, the question arose on the ground of non-application of mind in hurry, which shows arbitrary
character. But, in the present case, the situation is entirely converse with respect to legislative competence and due to oblique reason to bring the Ordinance to the effect, to which it was brought. Therefore, the said judgment is of no help to the respondents. The judgment of T.Venkata Reddy (supra) has also been cited by the respondent-State and the intervener but the said judgment has been overruled in the case of Krishna Kumar Singh (supra). Therefore, reliance on an overruled judgment is of no avail to the respondents. Learned Senior Counsel appearing for Mr.B has relied upon the judgment of Pradhan Sangh Kshettra Samiti (supra). But it is relating to the delimitation of the village territories in which the power of the Governor has been specified. However, the said judgment is also of no help to the case of Mr.B.
From Para 208 (Colourable Legislation; Not Colourful)
208. On the issue of colourable legislation, learned counsel for the petitioners relied upon the judgment of K.C. Gajapathi Narayan Deo (supra), in which Hon’ble Apex Court has made it clear that the doctrine of colourable legislation does not involve any question of mala fide on the part of the Legislature but this doctrine revolves around the question of competency of a particular Legislature to enact a particular law. Reliance has also been placed by the learned counsel for the petitioners on the judgment of Hon’ble the Supreme Court in Sonapur Tea Company Ltd. (supra), in which the judgment of K.C. Gajapathi Narayan Deo has been referred in the context of colourable legislation. On the other hand, learned Advocate General placed heavy reliance on the judgment of Hon’ble the Supreme Court in R.S. Joshi (supra), wherein at para 16, it is inter alia stated that the colourable legislation would not mean tainted with bad faith or evil motive. In the jurisprudence of power, colourable exercise of or fraud on legislative power or, more frightfully, fraud on the Constitution, are the expressions which merely mean that the Legislature is incompetent to enact a particular law although the label of competency is stuck on it, and then it is colourable legislation. However, in the present case, in view of the discussion made hereinabove, 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, which are on record, and remain undisputed, 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.
From Paras 213, 214 and 216 (Charade of Electoral Reforms)
213. The aforesaid circumstances clearly reveal that upto 07.03.2020 and 09.03.2020, at the time of declaration of the Election Notification, there was no point regarding electoral reforms. The issue arose only on issuance of notification on 15.03.2020, suspending the election notification and postponing the elections, and when the State Government remained unsuccessful before Hon’ble the Supreme Court in challenging the said notification. The SEC projected the unprecedented events and acts of the ruling party to the Central Government, which is controverted by other side. The statements of the Council of Ministers to sack Mr.A are on record. Thereafter, on the basis of two or three complaints, the entire action has been taken in the name of electoral reforms and promulgated the impugned Ordinance, making amendment to Section 200 of the APPR Act.
214. 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. It is not out of place to mention here 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, as per the procedure prescribed. 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. As discussed hereinabove, 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.
215. —–
216. In view of the above discussion, we hold that the power so exercised by the Governor under Article 213 of the Constitution in promulgating the impugned Ordinance is not based on the satisfaction of the circumstances exist which may render it necessary for him to take immediate action in public interest or in constitutional necessity, but it is actuated by oblique reasons and on extraneous grounds.
From Paras 243 and 244 (Entire plot of the Govt revealed by Court)
243. In the said context, it is not out of place to mention the facts of this case, in which Mr.A was appointed validly under the provisions of the enactment and the Rules in exercise of the power under Article 243K of the Constitution vide G.O.Ms.No.11, dated 30.01.2016 for a period of five years. Prior to elapse of the said period, on account of non-observance of the directions of the State Government by Mr.A, the Council of Ministers have decided to bring the Ordinance during the recess of the sessions of the Assembly and the Council, whereby the pre-qualification has been changed for appointment, which is not their domain and the tenure has also been introduced contrary to the constitutional spirit and the Report of the Task Force Committee in the name of Electoral Reforms without having any urgency. Simultaneously, with an intent to remove Mr.A, on the request made by the Chief Minister, Mr.B is appointed, who was a Judge of Madras High Court, retired in the year 2006 and appointed at the age of 77 years after 15 years of retirement, at present, practicing as a Senior Advocate in Supreme Court as per his Bio-data. In the said facts, the judgment of Kailash Chand Mahajan(supra) is not relevant.
244. It is not out of place to take a judicial notice of the fact that as of now twenty-two (22) Chief Election Commissioners of India were appointed under Article 324 of the Constitution have attained superannuation since Independence and none of them have worked above the age of 65 years. Therefore, removing of Mr.A and appointing Mr.B at the age of 77 years, how far, fair and reasonable and falls within the electoral reforms is not appealable to us. On the point of age, in the judgment of S.R. Balasubramaniyan (supra), which is a case of age of State Election Commissioner, the Division Bench of Madras High Court said that amendment of age of retirement after appointment was not found permissible. Any of the act of the State must be in consonance to the spirit of the Constitution and the Legislative intent, otherwise such an act cannot be recognized under the law.
From Paras 253, 254 and 269 (In Interpretation of Statutes to decide retrospective or Prospective applicability)
253. In the facts of the present case, another relevant aspect of the matter is that the appointment of Mr.A as SEC was in the year 2016 for a fixed tenure of five years, which shall come to an end on 31.03.2021. In the meantime, the amendment has been made in a substantive law specifying the eligibility for appointment and tenure. At the time of his appointment as SEC under 243K(1) of the Constitution, the tenure prescribed in the Old Rules, 1994 was five years. However, 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 rankof Principal Secretary to the Government. Thus, by adding these qualifications, the word ‘cessation’ used in the context, have itsapplicability retrospectively or prospectively is required to be examined.
254. 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. However, the intention of the amending provision and the provision existed already in the statute may be determinative factor to understand the same. Simultaneously, at the time of interpreting the statute there may be two views, one is ‘the law looks forward, not backward’ based on the maxim ‘Lex prospicit non respicit’, which means ‘the laws are generally deemed or presumed not to have retroactive’; another Maxim is ‘Lex De Futuro, Judex De Praeterito’ means‘law provides for the future’. Thus, the law deals substantive right of the parties brought ex post facto may be prospective, but in case of procedural law conflicting views may be possible. Another legal maxim ‘Nova Constitution Futuris formam imponere debet non praeteritis,’ which means new law ought to regulatewhat is to follow, not the past. The said view has been elaborated in a judgment of Monnet Ispat and Energy Limited v. Union of India and others145. In the said case, the Apex Court has held that the principle indicator is until and unless there is an express provision in the statute indicating retrospective applicability of the said statute, otherwise it would be prospective.
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269. Considering the legal position above, unless the later enactment which supersedes an earlier one expressly or impliedly puts an end to an earlier state of law, the rights of the party accruing under the superseded enactment cannot be taken away. In this regard, as per the law laid down in the cases of State of Orissa v. M.A. Tulloch and Co.151and Dayawati v. Inderjit152 are also relevant and on the same issue, which must be followed.
From Paras 281, 284 and 289, (On the point of curtailing the tenure of SEC)
281. Removal of the SEC following the procedure prescribed in the proviso to Sub-section (3) of Section 200 of the Old APPR Act will sufficiently take long time and to obviate such delay, the State appears to have been exercised power reducing tenure which was not a part of conditions of service and amended the Act by issuing the impugned Ordinance. As discussed in the earlier paragraphs, cessation of office is nothing but termination from the office, which takes away the valuable right accrued on the constitutional authority appointed under Article 243K of the Constitution. Even if a part of repeal to the provisions is re-enacted by substituting the words ‘Judge of the High Court’ in the place of ‘not less in rank than that of Principal Secretary to the Government’, that will have no impact, unless such provision is given retrospective effect. But, because of Sub-section (5) of Section 200 of the APPR Act by way of the impugned Ordinance, the incumbent in the office is deemed to have been ceased to hold the office and made certain consequential amendments to the notification governing the service conditions and tenure of the SEC.
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284. The conspectus of the discussion made hereinabove makes it clear that ‘cease to hold an office’ is amounting to ‘termination and removal’ from the said office. Once, it is governed by a proviso specified in the Constitution, bringing a Law by way of an amendment, specifying the words ‘any person appointed as State Election Commissioner and holding office as such shall cease to hold office’ is apparently violative of proviso to Article 243K(2) and it does not qualify the test of Article 14 of the Constitution. Therefore, we hold that the term ‘ceased to hold office’ in Subsection (5) of Section 200 of the APPR Act in the impugned Ordinance is having the effect of removal of Mr.A as SEC and the said removal is not permissible in view of the immunity prescribed under proviso to Clause (2) of Article 243K of the Constitution.
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289. From the above, it is clear that the tenure of the SEC so prescribed for a period of five year can only be curtailed by way of impeachment, following the procedure as noted above, 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.
From Para 291, (On Vested Interest to SEC)
291. In the present case and as per the discussion made hereinabove, it is clear that a ‘vested right’ is accrued to Mr.A to continue upto five years, which is not against public interest andconvenience in fact. Further, by virtue of the judgments of Hon’ble the Supreme Court in Kishansing Tomar (supra), MohinderSingh Gill (supra) and T.N. Seshan (supra), the SEC has a indefeasible right to continue for conduct of free and fair elections, which is a duty casted on him, and he can only be removed by wayof impeachment as per the procedure as discussed hereinabove. Thus, his removal by an order of Principal Secretary, though he isholding constitutional post, is unconstitutional and illegal.
From Paras 296 and 297 (On not passing the test of reasonable classification u/A 14)
296. As per the discussion made hereinabove, relying upon the judgments of Hon’ble the Supreme Court in Budhan Choudhary (supra) and D.S.Reddy (supra), the promulgation of the impugned Ordinance does not qualify the test of class legislation as specified in Article 14 of the Constitution of India.
297. In view of the above discussion, the appointment of Mr.A as SEC which was for five years cannot be taken away, that too, by an order of the Secretary of the Department without having signature of the Governor on the File, as discussed in Question No.4. Further, it is categorically clear that the power has been exercised with oblique reasons and on extraneous grounds and the exercise of such power is fraud on the Constitution. In that view of the matter, the right accrued to Mr.A cannot be taken away by virtue of an illegal promulgation of Ordinance. The discontinuation of Mr.A can only be possible by way of removal on the basis of proved misbehaviour and by following the procedure established by law, looking to the immunity so prescribed to Mr.A. Therefore, the entire action taken by the State, taking away the vested right of Mr.A, is illegal and unconstitutional.
From Paras 302 (On the point of Locus for Petitioner to file PIL)
302. Before adverting the said question, first of all, the judgments cited by the parties are required to be referred. The judgment of the Apex Court in S.P. Gupta (supra), was referred by the petitioners as well as the respondents. In the said judgment, the issue of Locus Standi and Judicial Review has been taken into consideration and said that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority, contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest, can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice. Thereby, the Court has held that the Public Interest litigation is liberalising the rule of locus standi. If there is a wrong, it can be invoked.
From Para 308, (Framing of Rules to file a PIL)
308. Lastly, the counsel for the respondents cited the judgment in Balwant Singh Chaufal (supra). The said judgment has been relied on by the petitioners also. In the said case, the Court framed guidelines relating to PIL. Those guidelines are reproduced as under:
“181. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:
(1) The Courts must encourage genuine and bona fide PIL and effectively discourage a and curb the PIL filed for extraneous considerations.
(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.”
From Para 316 (Conclusive Summary of the Judgment)
CONCLUSION :
316. On an earnest consideration of the factual and legal aspects in Question Nos.1 to 7 framed, discussed and answered, the conclusion of this Judgment is as follows:
316.1) 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.
316.2) 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.
316.3) 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.
316.4) 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.
316.5) 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.
316.6) 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.
316.7) The promulgated Ordinance No.5 of 2020 dated 10.04.2020 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.
316.8) 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.
316.9) 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.
From Para 318 (Direction to State Govt to restore the position of SEC)
318. The Respondent-State is directed to restore the position of Dr.N.Ramesh Kumar as State Election Commissioner and allow him to continue in the office until completion of the tenure as notified vide G.O.Ms.No.11 dated 30.01.2016. He is also entitled for all consequential benefits.
Dr N Ramesh Kumar IAS Vs State of AP on 29 May 2020
A complete indexed and mess-wise segregated collection of reprimands received by this incumbent State Government of YSRC Party are here.
