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Apart from terming the High Court's verdict as self-contradictory, the State asserts that the ordinance quashed by the Court in the process was necessary for transparency and efficiency in the SEC's functioning.
The Andhra Pradesh Government has moved the Supreme Court challenging the Andhra Pradesh High Court's decision to quash an April 10 ordinance that had effectively cut short the tenure of State Election Commissioner (SEC) Dr. N Ramesh Kumar. (SEC Ramesh Kumar - Andhra Pradesh Government SLP)
In its appeal, the State of Andhra Pradesh has highlighted that the ordinance in question, i.e. the Andhra Pradesh Panchayat Raj (Second Amendment) Ordinance, 2020 entailed the following key changes, i.e.:
Only a retired High Court Judge (being a trained judicial mind) 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 reduced to three years;
The term of the existing SEC was brought to an end;
A new SEC was appointed.
The State Government has asserted before the Supreme Court that these changes were necessitated, inter alia, to bring in "transparency and efficiency in the functioning of the State Election Commission.
These changes had led to the termination of Kumar as the SEC after three years of service, whereas he had been appointed for a five year term. In his place, retired Madras High Court judge, Justice (retd.) V Kanagraj was appointed as the new SEC.
Last week, the High Court Bench of Chief Justice JK Maheshwari and M Sathyanarayana Murthy had struck down the ordinance stating that it was "actuated by fraud on power and does not qualify the test of rationality and reasonableness specified in Article 14 of the Constitution of India."
Further, the High Court had also ordered the reinstatement of Dr N Ramesh Kumar as the SEC.
In the plea challenging this ruling, the State Govrnment highlights that the High Court had proceeded on the erroneous premise that the power of appointment the SEC is vested personally with the Governor.
To contest this finding, the State submits that Articles 243K and 243ZA of the Constitution reveals that the power of appointing the Chief Election Commissioner is to be exercised by the Governor "upon aid and advice of the Council of Ministers and not otherwise."
The State has argued that the High Court's finding that the SEC appointment should be at the personal discretion of the Governor is, therefore, ex facie unsustainable.
It is further highlighted that SEC Kumar was also appointed on the recommendation of the then Government. The State argues that if the High Court's May 29 ruling is applied, even this appointment would be vitiated. As such, the State contends that the High Court's judgment is self-contradictory. In this regard, the plea states,
"... even while ruling (albeit wrongly) 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."
Another contention raised concerns the High Court's finding that the tenure of the SEC cannot be altered by the State and that the SEC has a vested right as far as his fixed tenure is concerned.
In this regard, it is highlighted that Articles 243K and 243 ZA of the Constitution empower the State Legislature to provide for "the conditions of service and tenure of office of the State Election Commissioner."
Thereby, the plea states that the Parliament has made a clear distinction between ‘Conditions of Service’ and ‘Tenure of Office’ of the SEC.
In this regard, it is highlighted that the Parliament had consciously drawn a distinction, and categorically forbidden the making of any changes to ‘conditions of service’ of the State Election Commissioner to his detriment.
Pertinently, however, it is pointed out that "no such protection has been accorded to ‘Tenure of Office’. Thus, the SEC does not have a vested right of ‘tenure’ of appointment."
Among other grounds, the State has also registered protest that the High Court ruling was based on irrelevant considerations.
In this regard, it is stated that the Court had not issued notice to any minister, including the Chief Minister, although reliance was sought to be placed on certain statements ascribed to the Chief Minister. Further, while the Governor's office was made a party, no notice was issued to the Governor's office, the plea states.
The State Government has added that the dispute is a service matter and that its treatment as a matter of public interest was wholly misconcieved, especially given that the affected person himself (Dr Kumar) had also approached the Court in the matter.
On these grounds, the Government has now urged the Supreme Court to set aside the High Court ruling. The appeal has been drawn and filed by Advocate Mahfooz A Nazki.