Dr N Ramesh Kumar reinstated as Andhra Pradesh SEC after High Court quashes Ordinance cutting short tenure as "actuated by fraud on power"
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Dr N Ramesh Kumar reinstated as Andhra Pradesh SEC after High Court quashes Ordinance cutting short tenure as "actuated by fraud on power"

Taking note that Justice (retd.) V Kanagaraj's appointment as the new SEC was not under Article 243K(1) of the Constitution, the Court queried, "how far free and fair election of the Panchayats can be held in the State?"

Angelenne

In a set back to YSR Congress-led regime, the Andhra Pradesh High Court on Friday struck down a recent Government ordinance cutting short the tenure of State Election Commissioner (SEC) Dr. N Ramesh Kumar. (Andhra Pradesh SEC case - High Court Judgment)

In doing so, the Court also quashed the subsequent notification to appoint former Madras High Court judge, Justice (retd.) V Kanagaraj in his place for a three year period.

Following several reported clashes with the State Government, including on the decision to postpone local body elections on account citing the COVID-19 pandemic, the State Government promulgated an ordinance last April which effectively saw Kumar being removed from the post of SEC.

The ordinance in question was the Andhra Pradesh Panchayat Raj (Second Amendment) Ordinance, 2020, which amended Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994 to reduce the tenure of the SEC from five to three years.

Kumar, and various other political leaders, challenged the decision, as well as the appointment of Justice (retd.) Kanagaraj as the new SEC, before the Andhra Pradesh High Court.

A Bench of Chief Justice JK Maheshwari and M Satyanarayana Murthy has now ruled that the April 10, 2020 ordinance 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."

Taking critical note of the procedural irregularity involved in appointing Justice (retd.) Kanagaraj as the new SEC amid the controversy, the judgment records,

"The highly objectionable part in the case is that the appointment of the newly incumbent (Justice Kanagaraj) 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?"
Andhra Pradesh High Court

Consequently, the court has also set aside the consequent Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service, Tenure of State Election Commissioner) Rules.

The Bench ruled that as a Constitutionally defined functionary under under Article 243K of the Constitution, Dr Kumar has a vested right to function as the SEC for a tenure of five years following his 2016 appointment. This cannot be taken away without completion of tenure, the Court said. It was pointed out,

"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."
"...the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment."
Article 243K (2), Constitution of India

Inter alia, the Bench also noted that the Governor had erred in signing off on the ordinance as the circumstances required for the same under Article 213 of the Constituton did not exist in this case. Rather, the Court found that, "The power so exercised is actuated by oblique reasons and on extraneous grounds, without having any material for the satisfaction of the Governor."

In view of these, among other, observations, the High Court set aside the April 2020 Ordinance and the ordered the reinstatement of Dr N Kumar as the SEC for Andhra Pradesh.

"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."
Andhra Pradesh High Court

Senior Counsel DV Sitharam Murthy and Advocate N Ashwani Kumar, appeared for Dr N Ramesh Kumar.

The counsel appearing for other independent PIL petitioners included Senior Counsel Vedula Venkata Ramana with Advocate M Balanaga Srinivas, Senior Counsel D Srinivas with Advocates Ginjupalli Subba Rao and S Pranathi, Senior Advocate A Satya Prasad with Advocate Balaji Medamalli, Advocate Ravi Shankar Jandhyala, Advocate Kambhapati Ramesh Babu, Advocate Velagapudi VN Rao, Advocate T Sreedhar, Advocate B Nalin Kumar, Senior Counsel P Veera Reddy with Advocate Sodum Anvesha and Senior Counsel B Adinarayana Rao with Advocate Narra Srinivasa Rao. One petitioner, Thandava Yogesh appeared party in person.

Advocate General S Srininvas appeared for the State of Andhra Pradesh.

The Andhra Pradesh State Election Commission was represented by Senior Counsel CV Mohan Reddy with Advocate VV Prabhakar Rao. Justice (retd.) V Kanagraj was represented by Senior Advocate S Satynarayana Prasad with Advocate S Vivek Chandrasekhar.

Another respondent in the matter, Srinivasa Rao Gochipata was represented by Advocate Solomon Raju Machala

Read the Judgment:

Andhra Pradesh SEC case - High Court Judgment - May 29.pdf
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