{"id":185491,"date":"2006-03-16T00:00:00","date_gmt":"2006-03-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-r-balasubramaniyan-vs-r3-impleaded-as-per-order-of-on-16-march-2006"},"modified":"2015-06-07T01:12:34","modified_gmt":"2015-06-06T19:42:34","slug":"s-r-balasubramaniyan-vs-r3-impleaded-as-per-order-of-on-16-march-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-r-balasubramaniyan-vs-r3-impleaded-as-per-order-of-on-16-march-2006","title":{"rendered":"S.R.Balasubramaniyan vs (R3 Impleaded As Per Order Of on 16 March, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
S.R.Balasubramaniyan vs (R3 Impleaded As Per Order Of on 16 March, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 16\/03\/2006 \n\nCoram \n\nTHE HON'BLE MR. A.P.SHAH, THE CHIEF JUSTICE         \nand \nTHE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN           \n\nWrit Petition No. 40026 of 2005\n& 4323 of 2006 \n\nS.R.Balasubramaniyan, M.L.A.,  \nA-19, Tower Block, Taylor's Road,\nKilpauk, Chennai-600 010.       ...     Petitioner in both the\n                                        Writ Petitions\n-Vs-\n\nState of Tamil Nadu\nrep. by its Secretary to\nGovernment, \nLaw Department, \nFort St. George, Chennai-600 009.\n\nState of Tamil Nadu\nrep. by its Secretary to\nGovernment, \nMinistry of Local Administration,\nFort St. George,\nChennai-600 009. \n\nThiru V.Palanisamy, I.A.S.,\nState Election Commissioner, \nOffice of the State Election\nCommission, 100 Feet Road,  \nVadapalani, Chennai-600 026. \n\n(R3 impleaded as per order of\nCourt dated 22.2.2006 and made in       ...     Respondents in\nW.P.M.P.No.4160 of 2006)                   W.P.No.40026 of 2005\n\n\nState of Tamil Nadu\nrep. by the Chief Secretary\nto Government, \nSecretariat,\nFort St. George, Chennai-9.\n\nThe Secretary to Government, \nMinistry of Local Administration\nand Rural Development, \nSecretariat,\nFort St. George, Chennai-600 009.\n\nThiru V.Palanisamy, I.A.S.,\nState Election Commissioner, \nOffice of the State Election\nCommission,  \n100 Feet Road, Vadapalani,              ... Respondents in\nChennai-600 026.                            W.P.No.4323 of 2006\n\n\n\n\n\nPrayer in W.P.No.40026 of 2005:  Petition  filed  under  Article  226  of  the\nConstitution  of India praying for the issue of writ of Certiorari to call for\nthe records relating to Tamil Nadu Act 15\/2005  published  in  the  Government\nGazette  No.222,  Extraordinary  dated 13.10.2005 and to quash the same and to\nstrike down the words \"shall be eligible for reappointment\" found  in  Section\n239(2)(b) of the Tamil Nadu Panchayats Act,1994.\n\nPrayer in  W.P.No.4323  of  2006:    Petition  filed  under  Article 226 of he\nConstitution of India praying for the issue of writ of Certiorari to call  for\nthe  records  on  the  file of the first respondent relating to G.O.Ms.No.170,\nRural    Department    (C4)     dated     31.12.2005     vide     Notification\nNo.11(2)\/RUL\/938(c)\/2005  published  in  the  Tamil  Nadu  Government  Gazette\nExtraordinary, bearing No.275 dated 31.12.2005 and quash the same. \n\n!For petitioner in      :  Mr.G.Masilamani\nboth the petitions.     Senior Counsel\n                        for Mr.T.  Sathiyamoorthy\n\nFor respondents        :  Mr.N.R.Chandran\n                1 and 2 Advocate General\nin both the     Assisted by\nPetitions.      Mr.  P.P.  Shanmugasundaram\n                Government Advocate\n\nFor respondent 3        :  Mr.K.Rajasekaran\nin both the W.Ps.\n\n\n:ORDER  \n<\/pre>\n
(Order of the Court was made by
\nThe Honourable The Chief Justice)<\/p>\n
        The Legislative Assembly of the State of Tamil Nadu passed  the  Tamil
\nNadu  Panchayats  (Second  Amendment)  Act, 2005 (Act 15 of 2005) amending the
\nprovision of Section 239 (2) (b) of the Tamil Nadu Panchayats Act, 1994.  This
\nAct received the assent of  the  Governor  on  12th  October,  2005,  and  was
\npublished in  the  Government Gazette on 13th October, 2005.  Before we notice
\nthe amendment made in the 1994 Act, by  the  said  Amending  Act,  it  may  be
\nappropriate  to  notice  the provision of Section 239(2)(b) as it stood before
\nthe amendment.    Section  239(2)(b)  provides   that   the   State   Election
\nCommissioner  shall hold Office for a term of two years, and shall be eligible
\nfor re-appointment for two successive terms.  The  first  proviso  to  Section
\nstates that no person shall hold office of the State Election Commissioner for
\nmore than  six  years  in  the  aggregate.  The second proviso states that the
\nperson appointed as the State Election Commissioner shall retire from  office,
\nif he completes the age of sixty two years during the terms of his office.  By
\nTamil  Nadu  Act  15  of  2005,  the  words for two successive terms and the
\nprovisos in clause (b) of sub-section (2) of Section 23 9  stood  omitted  and
\nthe amended section 239(2)(b) reads as follows:  –\n<\/p>\n
“(b) The T.N.  State Election Commissioner shall hold Office for a term of two
\nyears and shall be eligible for re-appointment.”\n<\/p>\n
In  view  of  the  amendment, it now turns out that the post of State Election
\nCommissioner continues to be a tenure post i.e., for a period  of  two  years.
\nHowever,  the  incumbent shall be eligible for reappointment without any limit
\nof terms.  Further, in view of the retirement age of 62 having been deleted, a
\nperson of any age can be appointed to the post and reappointed without any age
\nlimit.  The amending Act has been brought into force  with  effect  from  13th
\nJuly 2005.    The  third  respondent  was  functioning  as  the State Election
\nCommissioner at the time the amending Act came  into  force.    He  was  first
\nappointed  on  15.2.2 002 for a term of two years, and after the expiry of the
\nsaid term, he was re-appointed.  He attained the age of 62 on 02.01.2006.  Now
\nhe has been appointed for the third term for two years with effect from  2  nd<\/p>\n
January 2006  to 1st January 2008.  The amended provision of Section 239(2)(b)
\nas well as the order of re-appointment  of  the  third  respondent  are  being
\nassailed in these petitions.\n<\/p>\n
        2.   The main ground of attack is that in view of the amended Act, for
\nthe post of the State Election Commissioner, a retired civil  servant  of  any
\nage can be appointed and also he can be reappointed for any number of terms at
\nthe will  of  the  State  Government  de  hors  his age.  This would lead to a
\nsituation that if a State Government remains at office  for  successive  terms
\nwhich  is  poss  ible in our democracy, the State Election Commissioner of its
\nchoice, who may act according to the whims and fancies of it, may be appointed
\nand reappointed till it lasts and also for any number of terms.    That  would
\nlead  to  complete  erosion  of  the  credibility  of  the office of the State
\nElection Commission and the functions to be carried out by the State  Election
\nCommissioner.  Such appointment shall not be conducive to democracy and proper
\nand  impartial  conduct  of election which is the foundation of Panchayat Raj.
\nWhen enough and  more  officers  within  the  normal  superannuation  age  are
\navailable  for  such  appointment,  there  is  no  need to perpetuate the same
\nperson, or to appoint a person beyond retirement age  to  this  constitutional
\nand  very  important  position,  especially when such person cannot be removed
\neasily like  a  civil  servant.    The  Constitution  nowhere   provides   for
\nappointment  to  the  post  of  a  civil  servant,  government servant, public
\nservant, or Judges of the High Courts and Supreme Court without any age  limit
\nor specific  number  of  terms.  The amended Section 239(2)(b) is thus totally
\narbitrary and irrational and violates Article 14 of the Constitution.\n<\/p>\n
        3.  A counter affidavit was filed on behalf of the State of Tamil Nadu
\nby Shri Maqsood Ali Khan, Deputy Secretary to  Government,  Rural  Development
\nDepartment, after rule nisi was issued in the writ petitions.  It is stated in
\nthe  affidavit  that in the All India State Election Commissioners Conferences
\nheld on 25.6.2003 and 21.2.2004 it was felt that the tenure  and  the  maximum
\nage  limit  of  the  State Election Commissioners vary from State to State and
\ntherefore, it was suggested that there should be uniform tenure and period  of
\noffice  for  State  Election Commissioners; that the Tamil Nadu State Election
\nCommission accordingly suggested to the Government of Tamil Nadu to raise  the
\nage  limit  of State Election Commissioner from 62 to 65 years so as to enable
\nthe local bodies to use his knowledge and experience  gained  over  a  period;
\nthat the Government of Tamil Nadu therefore decided to remove the restrictions
\nas  to the age and as to the maximum period of holding the office of the Tamil
\nNadu State Election Commissioner and amended sub-section (2) of Section 239 of
\nthe Tamil Nadu Panchayats Act suitably for the said purpose and  that  Article
\n243K(4)  of  the  Constitution  of India permits the State Legislature to make
\nprovisions with respect to matters relating to or in connection with  election
\nto  the  Panchayat and as such, the Tamil Nadu Act 15\/2005 is not violative of
\nthe Constitution of India as alleged.    The  affidavit  further  states  that
\ngeneral  elections  to  the  village  panchayats, panchayat union councils and
\ndistrict panchayats are held once in five  years  and  the  Tamil  Nadu  State
\nElection  Commissioner  may  not  have  an  opportunity to conduct the general
\nelections within the two successive terms of two years  of  reappointment  and
\ntherefore,  to  enable  the  Tamil Nadu State Election Commissioner to use his
\nknowledge and experience gained over a period to conduct atleast  one  general
\nelection  to  the  said  Panchayats,  the  Government  decided  to  remove the
\nrestrictions as to the age and as to the maximum period for holding the office
\nof the Tamil Nadu State Election Commissioner and to amend sub-section (2)  of
\nSection 23  9  for  the said purpose.  The affidavit asserts that the impugned
\nAct 15 of 2005 is not ultravires the Constitutional  provisions  contained  in
\nArticle  243K  of  the  Constitution  in  as much as the Constitution does not
\nprovide any age limit for the post of State Election Commissioner.\n<\/p>\n
        4.  An additional counter affidavit was filed on behalf of  the  State
\nof  Tamil  Nadu  and  that  affidavit was also sworn by Shri Maqsood Ali Khan,
\nDeputy Secretary to Government, Rural Development Department stating that  the
\nGovernment  had a re-look into the matter and taken a decision to fix an upper
\nage limit for the Tamil Nadu State Election Commissioner as 68 years  and  the
\nState is proposing to promulgate an Ordinance to give effect to this decision.
\nSince  an  amendment  can  be brought only by a legislation emergent steps are
\nbeing taken to  introduce  the  same  by  promulgating  an  Ordinance.    This
\naffidavit came  to be filed on 1st March 2006.  Even before this affidavit was
\nfiled, adjournments were taken by the State Government on the ground that  the
\nState  Government  was  exploring the possibility of promulgating an Ordinance
\nfor fixing an upper age limit to the post of State Election Commissioner.   No
\nOrdinance has been issued till date.\n<\/p>\n
        5.    Mr.G.Masilamani,   learned  senior  counsel  appearing  for  the
\npetitioner urged that the Election Commission is an independent body  and  its
\nindependence  is  vital to free and fair elections which is a sine qua non for
\ndemocracy.  Hence, it is of paramount importance to the democracy enshrined in
\nour Constitution that its independence is not eroded in any manner.    Learned
\ncounsel  urged  that by the impugned amendment, the post of the State Election
\nCommissioner is virtually converted into a life tenure without prescribing any
\nage of retirement with the sole object of continuing the present incumbent  in
\nthe post  of  State  Election Commissioner.  The impugned amendment confers an
\nunfettered and arbitrary power in the hands of the Government and is violative
\nof Article 14 of the Constitution.  He submitted that the legislation  is  not
\nin the interest of the general public but for an individual’s interest and any
\nsuch  legislation would be violative of Article 14 of the Constitution and has
\nto be quashed.  Learned counsel also submitted that considering  the  position
\nof the State Election Commissioner which is equated by the Constitution makers
\nwith  the  High  Court  Judges  in  that  he can be removed only by process of
\nimpeachment, any legislation which prescribes re-appointment to the post would
\nbe invalid.  According to the learned counsel, an appointee to the  post  with
\nthe  knowledge  that  he  would  come  back  to  his substantive post would be
\nsusceptible to Executive  and  Ministerial  influence,  which  he  would  find
\ndifficult to  resist.  In other words, he cannot be said to be independent and
\nimpartial to  discharge  the  vital  functions  of  the  Election  Commission.
\nSecondly,  it  would  mean  that  the  legislature could prescribe the term of
\noffice into several slots of one  year  or  even  less,  thereby  placing  the
\nappointee  perennially at the mercy of the Executive and making him implicitly
\ncarry out the wishes of the  Executive  and  allow  great  deal  of  room  for
\nExecutive domination over the manner in which he performs his functions.\n<\/p>\n
        6.  Mr.  N.R.Chandran, learned Advocate General reiterated the defence
\ntaken  by  the  State in the counter affidavit viz., that the intention of the
\nLegislature was only to provide an upper age  limit  for  the  State  Election
\nCommissioner  with  a  view to use the experience of the incumbent in the post
\nand with this object, the provision relating to maximum age limit was deleted.
\nLearned Advocate General hastened to add that the State  having  become  aware
\nthat  there  cannot  be a tenure without any age of retirement, has decided to
\nissue an Ordinance in order to provide  the  upper  age  limit  as  68  years.
\nLearned  Advocate  General, however, vehemently contended that a provision for
\nreappointment of the State Election Commissioner for one or more  terms  could
\nnot be  said  to  be  un-constitutional.    He  submitted  that  the status of
\nirremovability has no nexus with the tenure of the  post  and  merely  because
\nsection  permits re-appointment for one or more terms, it cannot be branded as
\nunconstitutional.  He cited several  examples  in  respect  of  various  posts
\nproviding  for  re-appointment  of  the  incumbent  at  the  discretion of the
\nGovernment.  In particular, he highlighted the provision in the Administrative
\nTribunals Act providing that Chairman, ViceChairman or  other  member  of  the
\nAdministrative  Tribunal shall be eligible for re-appointment for another term
\nof 5 years subject to agelimit of  65  years  in  the  case  of  Chairman  and
\nVice-Chairman and  62  years in the case of the member.  In this connection he
\nplaced reliance on the decision in Durgadas Purkyastha v.  Union of India, AIR<\/a>
\n2002 SC 26 39 where the validity of the said provision has been upheld by  the
\nSupreme Court.\n<\/p>\n
        7.   The  Preamble  of  our  Constitution  proclaims  that  we  are  a
\nDemocratic Republic.   Democracy being the basic feature of our constitutional
\nset-up, there can be no two opinions that  free  and  fair  elections  to  our
\nlegislative  bodies alone would guarantee the growth of a healthy democracy in
\nthe country.  In order to ensure the purity of the  election  process  it  was
\nthought  by  our  Constitution makers that the responsibility to hold free and
\nfair elections in the country should be entrusted to an independent body which
\nwould be insulated from  political  and\/or  executive  interference.    It  is
\ninherent  in  a  democratic set-up that the agency which is entrusted with the
\ntask of holding elections to the legislatures should  be  fully  insulated  so
\nthat  it  can  function  as an independent agency free from external pressures
\nfrom the party in power or executive of the day (See T.N.Sheshan Vs.  Union of
\nIndia (1995) 4 SCC 611  vide  paragraph    10).    Dr.Rajendra  Prasad  while
\nexplaining the importance of independence of the post of Election Commissioner
\nduring  the debate in the Constituent Assembly said (vide page 991 of Volume X
\nof the Constituent Assembly Debates Official Report):
\n” ….  We have provided  another  important  authority,  i.e.,  the  Election
\nCommissioner  whose function it will be to conduct and supervise the elections
\nto the Legislatures and to take all other necessary action in connection  with
\nthem.   One  of the dangers which we have to face arises out of any corruption
\nwhich parties, candidates or the Government in power may practice.    We  have
\nhad  no  experience  of democratic elections for a long time except during the
\nlast few years and now that we have got real power, the danger  of  corruption
\nis not  only  imaginary.  It is therefore as well that our Constitution guards
\nagainst this danger and makes provision  for  an  honest  and  straightforward
\nelection by  the voters.  In the case of the Legislature, the High Courts, the
\nPublic Services  Commission,  the  Comptroller  and  Auditor-General  and  the
\nElection Commissioner, the Staff which will assist them in their work has also
\nbeen  placed under their control and in most of these cases their appointment,
\npromotion and discipline vest in the  particular  institution  to  which  they
\nbelong thus giving additional safeguards about their independence.\n<\/p>\n
During  the  Constituent  Assembly  debates  it  was  further  highlighted  by
\nDr.Ambedkar that it is absolutely necessary that the new machinery  which  has
\nbeen  set  up,  namely,  the  Election Commission should be irremovable by the
\nexecutive by a mere fiat and therefore, the Chief  Election  Commissioner  has
\nbeen  given  the  same  status so far as removability is concerned as has been
\ngiven to the Judges of the Supreme Court (vide page 906 of Volume VIII of  the
\nConstituent Assembly Debates Official Report).\n<\/p>\n
        8.   In the light of the above said discussions we may now examine the
\nprovisions of Article 243K  of  the  Constitution.    Article  243K  reads  as
\nfollows:\n<\/p>\n
        243K.  Elections to the Panchayats:\n<\/p>\n
        (1)  The  superintendence, direction and control of the preparation of
\nelectoral rolls for, and the conduct of, all elections to the Panchayats shall
\nbe vested in a State  Election  Commission  consisting  of  a  State  Election
\nCommissioner to be appointed by the Governor.\n<\/p>\n
        (2)  Subject to the provisions of any law made by the Legislature of a
\nState, the conditions of service and tenure of office of  the  State  Election
\nCommissioner shall be such as the Governor may by rule determine;\n<\/p>\n
        Provided  that  the  State  Election Commissioner shall not be removed
\nfrom his office except in like manner and on the like ground as a Judge  of  a
\nHigh  Court  and  the conditions of service of the State Election Commissioner
\nshall not be varied to his disadvantage after his appointment.\n<\/p>\n
        (3) The Governor of a State shall, when  so  requested  by  the  State
\nElection  Commission,  make  available  to  the State Election Commission such
\nstaff as may be necessary for the discharge of the functions conferred on  the
\nState Election Commission by clause (1).\n<\/p>\n
        (4) Subject to the provisions of this Constitution, the Legislature of
\na  State  may, by law, make provision with respect to all matters relating to,
\nor in connection with, elections to the Panchayats.\n<\/p>\n
        9.  Clause (1) of Article 243K vests vast functions  including  powers
\nand  duties  in  the  matter  of conduct of all elections to panchayats in the
\nState Election Commissioner.  Clause (2) in  terms  provides  that  the  State
\nElection  Commissioner cannot be removed except by the process of impeachment,
\nin like manner and on the like ground as a Judge  of  a  High  Court  and  the
\nconditions  of  service of the State Election Commissioner shall not be varied
\nto his  disadvantage  after  his  appointment.    Clause  (4)   empowers   the
\nlegislature  of a State to make provision with respect to all matters relating
\nto or in connection with the  elections  to  the  panchayats  subject  to  the
\nprovisions of  the Constitution.  Thus, whenever a State Government intends to
\nmake a law with respect to matters relating  to  or  in  connection  with  the
\nelections   to   the   panchayats,  such  law  must  be  consistent  with  the
\nconstitutional limits and the policies.\n<\/p>\n
        10.   When  all  Constitutional  posts like Supreme Court Judges, High
\nCourt Judges, Chief Election Commissioner, Members of the Election Commission,
\nChairman and Members of the Union Public Service Commission and  that  of  the
\nState  Public  Service  Commissions, Comptroller and Auditor General of India,
\nall Civil  Servants,  Government  Servants,  Public  Servants,  including  the
\nexperienced  military  personnel  right from chief of Army Staff to Sepoy etc.
\nhave age limit and or specific number of  terms,  the  impugned  provision  of
\nSection  239  (2)(b) providing the post of State Election Commissioner without
\nage limit is wholly  arbitrary,  and  cannot  be  countenanced  as  it  is  in
\nviolation of basic structure of the Constitution viz., free and fair elections
\nwhich is the foundation of the Constitution.\n<\/p>\n
        11.   In  this connection, the observations of the Supreme Court in K.
\nNagaraj Vs.  State of Andhra  Pradesh,  AIR  1985  SC  551  at  page  556  are
\nextremely material.\n<\/p>\n
”       7.  …    Barring  a few services in a few parts of the world as, for
\nexample, the American Supreme Court, the terms and conditions of every  public
\nservice provide  for an age of retirement.  Indeed, the proposition that there
\nought to be an age of retirement in public  services  is  widely  accepted  as
\nreasonable and  rational.    The  fact  that  the stipulation as to the age of
\nretirement is a common feature of all of our public services  establishes  its
\nnecessity, no  less  than  its  reasonableness.   Public interest demands that
\nthere ought to be an age of retirement in public services.  The point  of  the
\npeak  level of efficiency is bound to differ from individual to individual but
\nthe age of retirement cannot obviously differ from  individual  to  individual
\nfor that   reason.      A  common  scheme  of  general  application  governing
\nsuperannuation has  therefore  to  be  evolved  in  the  light  of  experience
\nregarding  performance  levels  of  employees,  the need to provide employment
\nopportunities to the younger sections of society  and  the  need  to  open  up
\npromotional  opportunities  to  employees  at  the lower levels early in their
\ncareer.   Inevitably,  the  public   administrator   has   to   counterbalance
\nconflicting claims  while  determining  the age of superannuation.  On the one
\nhand, public services  cannot  be  deprived  of  the  benefit  of  the  mature
\nexperience  of senior employees; on the other hand, a sense of frustration and
\nstagnation cannot be allowed to generate in the minds of the junior members of
\nthe services and the younger sections of the society.  The balancing of  these
\nconflicting  claims  of  the  different  segments  of  society involves minute
\nquestions of policy which must, as far as possible, be left to the judgment of
\nthe executive and the legislature.  These  claims  involve  considerations  of
\nvarying vigour  and  applicability.   Often, the Court has no satisfactory and
\neffective means to decide which alternative, out of the many  competing  ones,
\nis the  best  in  the  circumstances  of a given case.  We do not suggest that
\nevery question of policy is outside the scope  of  judicial  review  or  that,
\nnecessarily,  there  are  no  manageable standards for reviewing any and every
\nquestion of policy.  Were it so, this Court would have declined  to  entertain
\npricing disputes  covering as wide a range as case to mustard-oil.  If the age
\nof retirement is fixed at an unreasonably low level so as to make it arbitrary
\nand irrational, the Court’s interference would be called for, though  not  for
\nfixing  the  age of retirement but for mandating a closer consideration of the
\nmatter.  ” Where an act is arbitrary, it is implicit in it that it is  unequal
\nboth  according  to  political  logic  and constitutional law and is therefore
\nviolative of Article 14; E.P.Royappa v.  State of  Tamil  Nadu<\/a>  (1974)  2  SCR
\n348:(AIR 1974  SC  555).    But, while resolving the validity of policy issues
\nlike the age of retirement, it is not proper to put the conflicting claims  in
\na  sensitive  judicial scale and decide the issue by finding out which way the
\nbalance tilts.    That  is  an  exercise  which  the  administrator  and   the
\nlegislature have  to  undertake.    As  stated  in  ‘The Supreme Court and the
\nJudicial Function’ Edited by Philips B.Kurland, Oxford & IBH  Publishing  Co.,
\nPage 13.  “Judicial self-restraint is itself one of the factors to be added to
\nthe  balancing process, carrying more or less weight as the circumstances seem
\nto require.\n<\/p>\n
        8.  We must therefore approach the problem before us with  a  view  to
\ndetermining  whether  the  age  of  retirement  has been reduced from 58 to 55
\nunreasonably or arbitrarily.  Such a fixation of age would be unreasonable  or
\narbitrary  if  it  does  not accord with the principles which are relevant for
\nfixing the age of retirement or if it does not subserve any  public  interest.
\nOn  the  other  hand,  the  Ordinance  shall  have  to  be  held valid, if the
\nfundamental premise upon which it proceeds  has  been  accepted  as  fair  and
\nreasonable  in comparable situations, if its provisions bear nexus with public
\ninterest and if it does not  offend  against  the  constitutional  limitations
\neither  on  legislative  competence  or  on the legislative power to pass laws
\nwhich bear on fundamental rights.               (Emphasis supplied)<\/p>\n
        12.  It is, thus, clearly laid down by  the  Supreme  Court  that  the
\nproposition  that there ought to be an age of retirement in public services is
\nwidely accepted as reasonable and rational, and public interest  demands  that
\nthere ought  to  be  an  age  of  retirement in public services.  The impugned
\nprovision which gives power to the State  Government  to  re-appoint  a  State
\nElection  Commissioner without any age limit or without any specific number of
\nterms is totally unreasonable, as it does not accord with the principles  that
\nare  relevant  for  fixing  the age of retirement nor does it serve any public
\ninterest.  On the other hand, the provision would confer an  unfettered  power
\non  the State Government to appoint a retired Civil Servant of any age for any
\nnumber of terms at the whims and fancies of the State  Government.    We  also
\nfind  considerable  merit  in the argument of Mr.G.Masilamani that considering
\nthe fact that the position of the State Election Commissioner  is  equated  by
\nthe  Constitution makers with the High Court Judges any legislation conferring
\npower on the State Legislature to make reappointment  to  the  post  would  be
\nviolative of  the  scheme  and  policy  of  the Constitution.  In fact, we are
\ninformed that barring the State of Tripura in no other State Legislation there
\nis a power for reappointment to the post of State Election Commissioner.    It
\nis,  however, not necessary to express any final opinion on this aspect as, in
\nour opinion, the impugned amendment which prescribes reappointment without any
\nage limit and without specific number of terms is per se violative of  Article
\n14 of  the  Constitution.    The  provision  would  defeat the very purpose of
\nconstituting the independent office of the Election Commissioner.    It  would
\nbe,  therefore,  just  and  proper  that while retaining the amended provision
\nprescribing the tenure of the State Election Commissioner for a  term  of  two
\nyears,  the  latter part of the Section i.e., the words and shall be eligible
\nfor reappointment can be legally and validly severed and must be struck down,
\nand accordingly that part of the Section is hereby struck down.\n<\/p>\n
        13.  The writ petitions stand disposed of.  Consequently W.P.M.P.No.42
\n919 of 2005 is closed.  No costs.\n<\/p>\n
        Learned Advocate General requests that the present  incumbent  may  be
\nallowed  to  continue for some time in order to enable the State Government to
\ntake appropriate action to fill up the post of  State  Election  Commissioner.
\nWe feel that the request of the learned Advocate General is reasonable, and we
\nallow the third respondent-State Election Commissioner to continue in the post
\nfor a period of four weeks from to-day.\n<\/p>\n
Vu\/sm\/pv <\/p>\n
Copy to:\n<\/p>\n
State of Tamil Nadu
\nrep.  by its Secretary to
\nGovernment,
\nLaw Department,
\nFort St.  George, Chennai-600 009.\n<\/p>\n
State of Tamil Nadu
\nrep.  by its Secretary to
\nGovernment,
\nMinistry of Local Administration,
\nFort St.  George,
\nChennai-600 009.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.R.Balasubramaniyan vs (R3 Impleaded As Per Order Of on 16 March, 2006 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-185491","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.R.Balasubramaniyan vs (R3 Impleaded As Per Order Of on 16 March, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-r-balasubramaniyan-vs-r3-impleaded-as-per-order-of-on-16-march-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.R.Balasubramaniyan vs (R3 Impleaded As Per Order Of on 16 March, 2006 - 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