IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16/03/2006
Coram
THE HON'BLE MR. A.P.SHAH, THE CHIEF JUSTICE
and
THE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN
Writ Petition No. 40026 of 2005
& 4323 of 2006
S.R.Balasubramaniyan, M.L.A.,
A-19, Tower Block, Taylor's Road,
Kilpauk, Chennai-600 010. ... Petitioner in both the
Writ Petitions
-Vs-
State of Tamil Nadu
rep. by its Secretary to
Government,
Law Department,
Fort St. George, Chennai-600 009.
State of Tamil Nadu
rep. by its Secretary to
Government,
Ministry of Local Administration,
Fort St. George,
Chennai-600 009.
Thiru V.Palanisamy, I.A.S.,
State Election Commissioner,
Office of the State Election
Commission, 100 Feet Road,
Vadapalani, Chennai-600 026.
(R3 impleaded as per order of
Court dated 22.2.2006 and made in ... Respondents in
W.P.M.P.No.4160 of 2006) W.P.No.40026 of 2005
State of Tamil Nadu
rep. by the Chief Secretary
to Government,
Secretariat,
Fort St. George, Chennai-9.
The Secretary to Government,
Ministry of Local Administration
and Rural Development,
Secretariat,
Fort St. George, Chennai-600 009.
Thiru V.Palanisamy, I.A.S.,
State Election Commissioner,
Office of the State Election
Commission,
100 Feet Road, Vadapalani, ... Respondents in
Chennai-600 026. W.P.No.4323 of 2006
Prayer in W.P.No.40026 of 2005: Petition filed under Article 226 of the
Constitution of India praying for the issue of writ of Certiorari to call for
the records relating to Tamil Nadu Act 15/2005 published in the Government
Gazette No.222, Extraordinary dated 13.10.2005 and to quash the same and to
strike down the words "shall be eligible for reappointment" found in Section
239(2)(b) of the Tamil Nadu Panchayats Act,1994.
Prayer in W.P.No.4323 of 2006: Petition filed under Article 226 of he
Constitution of India praying for the issue of writ of Certiorari to call for
the records on the file of the first respondent relating to G.O.Ms.No.170,
Rural Department (C4) dated 31.12.2005 vide Notification
No.11(2)/RUL/938(c)/2005 published in the Tamil Nadu Government Gazette
Extraordinary, bearing No.275 dated 31.12.2005 and quash the same.
!For petitioner in : Mr.G.Masilamani
both the petitions. Senior Counsel
for Mr.T. Sathiyamoorthy
For respondents : Mr.N.R.Chandran
1 and 2 Advocate General
in both the Assisted by
Petitions. Mr. P.P. Shanmugasundaram
Government Advocate
For respondent 3 : Mr.K.Rajasekaran
in both the W.Ps.
:ORDER
(Order of the Court was made by
The Honourable The Chief Justice)
The Legislative Assembly of the State of Tamil Nadu passed the Tamil
Nadu Panchayats (Second Amendment) Act, 2005 (Act 15 of 2005) amending the
provision of Section 239 (2) (b) of the Tamil Nadu Panchayats Act, 1994. This
Act received the assent of the Governor on 12th October, 2005, and was
published in the Government Gazette on 13th October, 2005. Before we notice
the amendment made in the 1994 Act, by the said Amending Act, it may be
appropriate to notice the provision of Section 239(2)(b) as it stood before
the amendment. Section 239(2)(b) provides that the State Election
Commissioner shall hold Office for a term of two years, and shall be eligible
for re-appointment for two successive terms. The first proviso to Section
states that no person shall hold office of the State Election Commissioner for
more than six years in the aggregate. The second proviso states that the
person appointed as the State Election Commissioner shall retire from office,
if he completes the age of sixty two years during the terms of his office. By
Tamil Nadu Act 15 of 2005, the words for two successive terms and the
provisos in clause (b) of sub-section (2) of Section 23 9 stood omitted and
the amended section 239(2)(b) reads as follows: –
“(b) The T.N. State Election Commissioner shall hold Office for a term of two
years and shall be eligible for re-appointment.”
In view of the amendment, it now turns out that the post of State Election
Commissioner continues to be a tenure post i.e., for a period of two years.
However, the incumbent shall be eligible for reappointment without any limit
of terms. Further, in view of the retirement age of 62 having been deleted, a
person of any age can be appointed to the post and reappointed without any age
limit. The amending Act has been brought into force with effect from 13th
July 2005. The third respondent was functioning as the State Election
Commissioner at the time the amending Act came into force. He was first
appointed on 15.2.2 002 for a term of two years, and after the expiry of the
said term, he was re-appointed. He attained the age of 62 on 02.01.2006. Now
he has been appointed for the third term for two years with effect from 2 nd
January 2006 to 1st January 2008. The amended provision of Section 239(2)(b)
as well as the order of re-appointment of the third respondent are being
assailed in these petitions.
2. The main ground of attack is that in view of the amended Act, for
the post of the State Election Commissioner, a retired civil servant of any
age can be appointed and also he can be reappointed for any number of terms at
the will of the State Government de hors his age. This would lead to a
situation that if a State Government remains at office for successive terms
which is poss ible in our democracy, the State Election Commissioner of its
choice, who may act according to the whims and fancies of it, may be appointed
and reappointed till it lasts and also for any number of terms. That would
lead to complete erosion of the credibility of the office of the State
Election Commission and the functions to be carried out by the State Election
Commissioner. Such appointment shall not be conducive to democracy and proper
and impartial conduct of election which is the foundation of Panchayat Raj.
When enough and more officers within the normal superannuation age are
available for such appointment, there is no need to perpetuate the same
person, or to appoint a person beyond retirement age to this constitutional
and very important position, especially when such person cannot be removed
easily like a civil servant. The Constitution nowhere provides for
appointment to the post of a civil servant, government servant, public
servant, or Judges of the High Courts and Supreme Court without any age limit
or specific number of terms. The amended Section 239(2)(b) is thus totally
arbitrary and irrational and violates Article 14 of the Constitution.
3. A counter affidavit was filed on behalf of the State of Tamil Nadu
by Shri Maqsood Ali Khan, Deputy Secretary to Government, Rural Development
Department, after rule nisi was issued in the writ petitions. It is stated in
the affidavit that in the All India State Election Commissioners Conferences
held on 25.6.2003 and 21.2.2004 it was felt that the tenure and the maximum
age limit of the State Election Commissioners vary from State to State and
therefore, it was suggested that there should be uniform tenure and period of
office for State Election Commissioners; that the Tamil Nadu State Election
Commission accordingly suggested to the Government of Tamil Nadu to raise the
age limit of State Election Commissioner from 62 to 65 years so as to enable
the local bodies to use his knowledge and experience gained over a period;
that the Government of Tamil Nadu therefore decided to remove the restrictions
as to the age and as to the maximum period of holding the office of the Tamil
Nadu State Election Commissioner and amended sub-section (2) of Section 239 of
the Tamil Nadu Panchayats Act suitably for the said purpose and that Article
243K(4) of the Constitution of India permits the State Legislature to make
provisions with respect to matters relating to or in connection with election
to the Panchayat and as such, the Tamil Nadu Act 15/2005 is not violative of
the Constitution of India as alleged. The affidavit further states that
general elections to the village panchayats, panchayat union councils and
district panchayats are held once in five years and the Tamil Nadu State
Election Commissioner may not have an opportunity to conduct the general
elections within the two successive terms of two years of reappointment and
therefore, to enable the Tamil Nadu State Election Commissioner to use his
knowledge and experience gained over a period to conduct atleast one general
election to the said Panchayats, the Government decided to remove the
restrictions as to the age and as to the maximum period for holding the office
of the Tamil Nadu State Election Commissioner and to amend sub-section (2) of
Section 23 9 for the said purpose. The affidavit asserts that the impugned
Act 15 of 2005 is not ultravires the Constitutional provisions contained in
Article 243K of the Constitution in as much as the Constitution does not
provide any age limit for the post of State Election Commissioner.
4. An additional counter affidavit was filed on behalf of the State
of Tamil Nadu and that affidavit was also sworn by Shri Maqsood Ali Khan,
Deputy Secretary to Government, Rural Development Department stating that the
Government had a re-look into the matter and taken a decision to fix an upper
age limit for the Tamil Nadu State Election Commissioner as 68 years and the
State is proposing to promulgate an Ordinance to give effect to this decision.
Since an amendment can be brought only by a legislation emergent steps are
being taken to introduce the same by promulgating an Ordinance. This
affidavit came to be filed on 1st March 2006. Even before this affidavit was
filed, adjournments were taken by the State Government on the ground that the
State Government was exploring the possibility of promulgating an Ordinance
for fixing an upper age limit to the post of State Election Commissioner. No
Ordinance has been issued till date.
5. Mr.G.Masilamani, learned senior counsel appearing for the
petitioner urged that the Election Commission is an independent body and its
independence is vital to free and fair elections which is a sine qua non for
democracy. Hence, it is of paramount importance to the democracy enshrined in
our Constitution that its independence is not eroded in any manner. Learned
counsel urged that by the impugned amendment, the post of the State Election
Commissioner is virtually converted into a life tenure without prescribing any
age of retirement with the sole object of continuing the present incumbent in
the post of State Election Commissioner. The impugned amendment confers an
unfettered and arbitrary power in the hands of the Government and is violative
of Article 14 of the Constitution. He submitted that the legislation is not
in the interest of the general public but for an individual’s interest and any
such legislation would be violative of Article 14 of the Constitution and has
to be quashed. Learned counsel also submitted that considering the position
of the State Election Commissioner which is equated by the Constitution makers
with the High Court Judges in that he can be removed only by process of
impeachment, any legislation which prescribes re-appointment to the post would
be invalid. According to the learned counsel, an appointee to the post with
the knowledge that he would come back to his substantive post would be
susceptible to Executive and Ministerial influence, which he would find
difficult to resist. In other words, he cannot be said to be independent and
impartial to discharge the vital functions of the Election Commission.
Secondly, it would mean that the legislature could prescribe the term of
office into several slots of one year or even less, thereby placing the
appointee perennially at the mercy of the Executive and making him implicitly
carry out the wishes of the Executive and allow great deal of room for
Executive domination over the manner in which he performs his functions.
6. Mr. N.R.Chandran, learned Advocate General reiterated the defence
taken by the State in the counter affidavit viz., that the intention of the
Legislature was only to provide an upper age limit for the State Election
Commissioner with a view to use the experience of the incumbent in the post
and with this object, the provision relating to maximum age limit was deleted.
Learned Advocate General hastened to add that the State having become aware
that there cannot be a tenure without any age of retirement, has decided to
issue an Ordinance in order to provide the upper age limit as 68 years.
Learned Advocate General, however, vehemently contended that a provision for
reappointment of the State Election Commissioner for one or more terms could
not be said to be un-constitutional. He submitted that the status of
irremovability has no nexus with the tenure of the post and merely because
section permits re-appointment for one or more terms, it cannot be branded as
unconstitutional. He cited several examples in respect of various posts
providing for re-appointment of the incumbent at the discretion of the
Government. In particular, he highlighted the provision in the Administrative
Tribunals Act providing that Chairman, ViceChairman or other member of the
Administrative Tribunal shall be eligible for re-appointment for another term
of 5 years subject to agelimit of 65 years in the case of Chairman and
Vice-Chairman and 62 years in the case of the member. In this connection he
placed reliance on the decision in Durgadas Purkyastha v. Union of India, AIR
2002 SC 26 39 where the validity of the said provision has been upheld by the
Supreme Court.
7. The Preamble of our Constitution proclaims that we are a
Democratic Republic. Democracy being the basic feature of our constitutional
set-up, there can be no two opinions that free and fair elections to our
legislative bodies alone would guarantee the growth of a healthy democracy in
the country. In order to ensure the purity of the election process it was
thought by our Constitution makers that the responsibility to hold free and
fair elections in the country should be entrusted to an independent body which
would be insulated from political and/or executive interference. It is
inherent in a democratic set-up that the agency which is entrusted with the
task of holding elections to the legislatures should be fully insulated so
that it can function as an independent agency free from external pressures
from the party in power or executive of the day (See T.N.Sheshan Vs. Union of
India (1995) 4 SCC 611 vide paragraph 10). Dr.Rajendra Prasad while
explaining the importance of independence of the post of Election Commissioner
during the debate in the Constituent Assembly said (vide page 991 of Volume X
of the Constituent Assembly Debates Official Report):
” …. We have provided another important authority, i.e., the Election
Commissioner whose function it will be to conduct and supervise the elections
to the Legislatures and to take all other necessary action in connection with
them. One of the dangers which we have to face arises out of any corruption
which parties, candidates or the Government in power may practice. We have
had no experience of democratic elections for a long time except during the
last few years and now that we have got real power, the danger of corruption
is not only imaginary. It is therefore as well that our Constitution guards
against this danger and makes provision for an honest and straightforward
election by the voters. In the case of the Legislature, the High Courts, the
Public Services Commission, the Comptroller and Auditor-General and the
Election Commissioner, the Staff which will assist them in their work has also
been placed under their control and in most of these cases their appointment,
promotion and discipline vest in the particular institution to which they
belong thus giving additional safeguards about their independence.
During the Constituent Assembly debates it was further highlighted by
Dr.Ambedkar that it is absolutely necessary that the new machinery which has
been set up, namely, the Election Commission should be irremovable by the
executive by a mere fiat and therefore, the Chief Election Commissioner has
been given the same status so far as removability is concerned as has been
given to the Judges of the Supreme Court (vide page 906 of Volume VIII of the
Constituent Assembly Debates Official Report).
8. In the light of the above said discussions we may now examine the
provisions of Article 243K of the Constitution. Article 243K reads as
follows:
243K. Elections to the Panchayats:
(1) The superintendence, direction and control of the preparation of
electoral rolls for, and the conduct of, all elections to the Panchayats shall
be vested in a State Election Commission consisting of a State Election
Commissioner to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature of a
State, the conditions of service and tenure of office of the State Election
Commissioner shall be such as the Governor may by rule determine;
Provided that 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.
(3) The Governor of a State shall, when so requested by the State
Election Commission, make available to the State Election Commission such
staff as may be necessary for the discharge of the functions conferred on the
State Election Commission by clause (1).
(4) Subject to the provisions of this Constitution, the Legislature of
a State may, by law, make provision with respect to all matters relating to,
or in connection with, elections to the Panchayats.
9. Clause (1) of Article 243K vests vast functions including powers
and duties in the matter of conduct of all elections to panchayats in the
State Election Commissioner. Clause (2) in terms provides that the State
Election Commissioner cannot be removed except by the process of impeachment,
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. Clause (4) empowers the
legislature of a State to make provision with respect to all matters relating
to or in connection with the elections to the panchayats subject to the
provisions of the Constitution. Thus, whenever a State Government intends to
make a law with respect to matters relating to or in connection with the
elections to the panchayats, such law must be consistent with the
constitutional limits and the policies.
10. When all Constitutional posts like Supreme Court Judges, High
Court Judges, Chief Election Commissioner, Members of the Election Commission,
Chairman and Members of the Union Public Service Commission and that of the
State Public Service Commissions, Comptroller and Auditor General of India,
all Civil Servants, Government Servants, Public Servants, including the
experienced military personnel right from chief of Army Staff to Sepoy etc.
have age limit and or specific number of terms, the impugned provision of
Section 239 (2)(b) providing the post of State Election Commissioner without
age limit is wholly arbitrary, and cannot be countenanced as it is in
violation of basic structure of the Constitution viz., free and fair elections
which is the foundation of the Constitution.
11. In this connection, the observations of the Supreme Court in K.
Nagaraj Vs. State of Andhra Pradesh, AIR 1985 SC 551 at page 556 are
extremely material.
” 7. … Barring a few services in a few parts of the world as, for
example, the American Supreme Court, the terms and conditions of every public
service provide for an age of retirement. Indeed, the proposition that there
ought to be an age of retirement in public services is widely accepted as
reasonable and rational. The fact that the stipulation as to the age of
retirement is a common feature of all of our public services establishes its
necessity, no less than its reasonableness. Public interest demands that
there ought to be an age of retirement in public services. The point of the
peak level of efficiency is bound to differ from individual to individual but
the age of retirement cannot obviously differ from individual to individual
for that reason. A common scheme of general application governing
superannuation has therefore to be evolved in the light of experience
regarding performance levels of employees, the need to provide employment
opportunities to the younger sections of society and the need to open up
promotional opportunities to employees at the lower levels early in their
career. Inevitably, the public administrator has to counterbalance
conflicting claims while determining the age of superannuation. On the one
hand, public services cannot be deprived of the benefit of the mature
experience of senior employees; on the other hand, a sense of frustration and
stagnation cannot be allowed to generate in the minds of the junior members of
the services and the younger sections of the society. The balancing of these
conflicting claims of the different segments of society involves minute
questions of policy which must, as far as possible, be left to the judgment of
the executive and the legislature. These claims involve considerations of
varying vigour and applicability. Often, the Court has no satisfactory and
effective means to decide which alternative, out of the many competing ones,
is the best in the circumstances of a given case. We do not suggest that
every question of policy is outside the scope of judicial review or that,
necessarily, there are no manageable standards for reviewing any and every
question of policy. Were it so, this Court would have declined to entertain
pricing disputes covering as wide a range as case to mustard-oil. If the age
of retirement is fixed at an unreasonably low level so as to make it arbitrary
and irrational, the Court’s interference would be called for, though not for
fixing the age of retirement but for mandating a closer consideration of the
matter. ” Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and is therefore
violative of Article 14; E.P.Royappa v. State of Tamil Nadu (1974) 2 SCR
348:(AIR 1974 SC 555). But, while resolving the validity of policy issues
like the age of retirement, it is not proper to put the conflicting claims in
a sensitive judicial scale and decide the issue by finding out which way the
balance tilts. That is an exercise which the administrator and the
legislature have to undertake. As stated in ‘The Supreme Court and the
Judicial Function’ Edited by Philips B.Kurland, Oxford & IBH Publishing Co.,
Page 13. “Judicial self-restraint is itself one of the factors to be added to
the balancing process, carrying more or less weight as the circumstances seem
to require.
8. We must therefore approach the problem before us with a view to
determining whether the age of retirement has been reduced from 58 to 55
unreasonably or arbitrarily. Such a fixation of age would be unreasonable or
arbitrary if it does not accord with the principles which are relevant for
fixing the age of retirement or if it does not subserve any public interest.
On the other hand, the Ordinance shall have to be held valid, if the
fundamental premise upon which it proceeds has been accepted as fair and
reasonable in comparable situations, if its provisions bear nexus with public
interest and if it does not offend against the constitutional limitations
either on legislative competence or on the legislative power to pass laws
which bear on fundamental rights. (Emphasis supplied)
12. It is, thus, clearly laid down by the Supreme Court that the
proposition that there ought to be an age of retirement in public services is
widely accepted as reasonable and rational, and public interest demands that
there ought to be an age of retirement in public services. The impugned
provision which gives power to the State Government to re-appoint a State
Election Commissioner without any age limit or without any specific number of
terms is totally unreasonable, as it does not accord with the principles that
are relevant for fixing the age of retirement nor does it serve any public
interest. On the other hand, the provision would confer an unfettered power
on the State Government to appoint a retired Civil Servant of any age for any
number of terms at the whims and fancies of the State Government. We also
find considerable merit in the argument of Mr.G.Masilamani that considering
the fact that the position of the State Election Commissioner is equated by
the Constitution makers with the High Court Judges any legislation conferring
power on the State Legislature to make reappointment to the post would be
violative of the scheme and policy of the Constitution. In fact, we are
informed that barring the State of Tripura in no other State Legislation there
is a power for reappointment to the post of State Election Commissioner. It
is, however, not necessary to express any final opinion on this aspect as, in
our opinion, the impugned amendment which prescribes reappointment without any
age limit and without specific number of terms is per se violative of Article
14 of the Constitution. The provision would defeat the very purpose of
constituting the independent office of the Election Commissioner. It would
be, therefore, just and proper that while retaining the amended provision
prescribing the tenure of the State Election Commissioner for a term of two
years, the latter part of the Section i.e., the words and shall be eligible
for reappointment can be legally and validly severed and must be struck down,
and accordingly that part of the Section is hereby struck down.
13. The writ petitions stand disposed of. Consequently W.P.M.P.No.42
919 of 2005 is closed. No costs.
Learned Advocate General requests that the present incumbent may be
allowed to continue for some time in order to enable the State Government to
take appropriate action to fill up the post of State Election Commissioner.
We feel that the request of the learned Advocate General is reasonable, and we
allow the third respondent-State Election Commissioner to continue in the post
for a period of four weeks from to-day.
Vu/sm/pv
Copy to:
State of Tamil Nadu
rep. by its Secretary to
Government,
Law Department,
Fort St. George, Chennai-600 009.
State of Tamil Nadu
rep. by its Secretary to
Government,
Ministry of Local Administration,
Fort St. George,
Chennai-600 009.