Andhra Pradesh High Court - Amravati
Regu Maheswara Rao vs The State Of Andhra Pradesh on 8 October, 2021
1
* THE HONOURABLE SRI JUSTICE BATTU DEVANAND
+ WRIT PETITION No.9560 of 2021
%Dated: -07-10-2021
W.P.No.9560 of 2021
#Regu Maheswara Rao --- Petitioner
and
$1. The State of Andhra Pradesh,
Rep.by its Principal Secretary to Government &
3 others. ---Respondents
! Counsel for the Petitioner : Sri B. Sesi Bushan Rao
^ Counsel for Respondents :1)G.P for Panchayat Rural
Development for R.1.
: (2) Sri M. Karthik Pavan Kumar
for R.2
: (3) Sri Vivek Chandra Sekhar S for
R.3.
: (4) M/s Indus Law Firm for R.4.
< GIST :
> HEAD NOTE :
? Cases referred :
1) 2021 SCC Online SC 211
2) 2020(4) ALT 102
3) (1998) 1 SCC 1
4) 2015 (1) ADJ 387
5) 2020 Crl.L.J.1740
6)1993 (10) SCC 302
7) 2017 (4) SCC 665
8) 2021 SCC Online SC 463
9) 2006 (8) SCC 200
10) 2011 (4) SCC 353
11) 2010 (6) SCC 331
12) 2014(5) SCC 312
13) 2003 (8) SCC 40
14) (1996) 9 SCC 309
15) (2004) 2 SCC 150
2
THE HON'BLE SRI JUSTICE BATTU DEVANAND
WRIT PETITION No.9560 of 2021
W.P.No.9560 of 2021
#Regu Maheswara Rao --- Petitioner
and
$1. The State of Andhra Pradesh,
Rep.by its Principal Secretary to Government &
3 others. ---Respondents
! Counsel for the Petitioners : Sri B. Sesi Bushan Rao
^ Counsel for Respondents :1)G.P for Panchayat Rural
Development for R.1.
: (2) Sri M. Karthik Pavan Kumar.
for R.2
: (3) Sri Vivek Chandra Sekhar S for
R.3.
: (4) M/s Indus Law Firm for R.4.
DATE OF ORDER PRONOUNCED: 07.10.2021
THE HON'BLE SRI JUSTICE BATTU DEVANAND
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their ladyship/Lordship wish Yes/No
to see the fair copy of the Judgment?
_____________________________
JUSTICE BATTU DEVANAND
3
THE HON'BLE SRI JUSTICE BATTU DEVANAND
W.P.NO.9560 of 2021
ORDER:
This Writ Petition has been filed by the petitioner for
the following reliefs :
i) declaring the appointment of Respondent No.4 as
State Election Commissioner Vide G.O.Ms.No.20 PR
& RD, (E&R), dated 28.03.2021 as unconstitutional
being violative of Article 243 k (1) of the Constitution
of India and contrary to the direction of the Hon‟ble
Supreme Court Judgment in State of Goa &
Another Vs. Fouziya Imtiaz Shaikh and
another1;
ii) that this Hon‟ble Court may be pleased to issue Writ
of Quo-warranto against respondent No.4, requiring
him to show the authority to hold the office of the
State Election Commissioner from the date of
appointment vide G.O.Ms.No.20 PR & RD, (E&R)
Department, Dated 28.03.2021;
iii) Declaring the G.O.Ms.No 20, PR & RD,(E & R) Dept,
Dated 28.03.2021, as Unconstitutional being
violative of Article 243 k (1) of the Constitution of
India and contrary to the direction of the Honble
Supreme Court judgment in Civil Appeal No. 881 of
2021 (State of Goa and another Vs Fouziya Shaikh
and another, dated 12.3.2021;
iv) Consequently Quash the appointment of the
Respondent No.4 as State Election Commissioner by
setting aside the G.O.Ms.No 20, PR and RD,
(Elections), Department, dated 28.03.2021; and
2021 SCC Online SC 211
v) Consequently direct the Respondent No 1 and 2 to
comply with the mandate of Article 243 k (1) of the
Constitution of India and the direction of the Hon‟ble
Supreme Court judgment in Civil Appeal No. 881 of
2021 (State of Goa and another Vs Fouziya Shaikh
and another, dated 12.3.2021 in appointment of
State Election Commissioner.
02. The case of the petitioner is that;
(i) The petitioner is a practicing Advocate and an
elector of Salur Municipality, Vizianagaram District. The
State of Andhra Pradesh had enacted the A.P. Panchayat
Raj Act, 1994 to provide for the constitution of rural local
bodies and Section 200 of the APPR Act, 1994, constitutes
the State Election Commission for the superintendence,
direction and control of the preparation of electoral rolls for,
and the conduct of, all elections to the Panchayat. Sub-
Section 2 of Section 200 of APPR Act, 1994, ordains that
the Governor on the recommendation of the government
shall appoint a persons, who is holding or who has held an
office not less in rank than that of a Principal Secretary to
Government as State Election Commissioner. In exercise of
powers conferred under Section 200 of APPR Act, 1994, the
Governor issued the APPR (Salaries, Allowances and
Condition of Service of the State Election Commissioner)
Rules, 1994. Prior to the appointment of Respondent No.4
as State Election Commissioner, the Election
Commissioners were appointed on recommendation of the
Government.
(ii) It is submitted that pursuant to the orders of this
Court in the case of N. Ramesh Kumar and others vs.
State of A.P and others 2 , position of Sri N. Ramesh
Kumar as State Election Commissioner was restored vide
orders in G.O.Ms.No.645, PR &RD,(E&R) Dept., dated
30.07.2020 and Sri N. Ramesh Kumar completed his term
of office as Election Commissioner by 31.03.2021.
(iii) It is submitted that the 4th respondent, an Indian
Administrative Service Officer borne on the Indian
Administrative Service cadre of Andhra Pradesh, was
appointed as Chief Secretary to Government vide
G.O.Rt.No.2563 G.A. (SC.A) Department, dated 13.11.2019
and a notification was issued vide G.O.Rt.No.2593 General
Administration (SC.A) Department, dated 19.11.2019
notifying the retirement of Indian Administrative Service
Officers borne on the Indian Administrative Service cadre of
Andhra Pradesh, during the year, 2020 on attaining the age
of superannuation, wherein the name of the 4th respondent
was shown at Serial No.5 and the date of retirement was
30.06.2020. Before attaining the age of superannuation,
the Government of Andhra Pradesh has requested the
2020(4) ALT 102
Union of India to extend the services of the 4th respondent
and the Union of India extended the services of 4th
respondent from time to time till 31.12.2020 on which the
date the 4th respondent was retired from service.
(iv) It is submitted that the 4th respondent was
appointed as Principal Advisor to Chief Minister in the rank
of Cabinet Minister, vide G.O.Rt.No.2011 General
Administration (SC.A) Department, dated 22.12.2020, as
she is the choice of political executive of the State.
(v) It is submitted that much before retirement as
Chief Secretary to the Government, the 4th respondent to
set at naught to the convention of political neutrality, one
British convention, which applicable to the Civil Services, is
that Civil Servants and other public authorities are expected
to be politically neutral, unless this principal is followed
strictly, there is bound to be chaos in the administration, by
any stench of imagination, one cannot come to a conclusion
that the 4th respondent is an independent person to
consider for appointment as State Election Commissioner,
high constitutional office, which is to conduct elections
under Part IX and IX A of the Constitution.
(vi) It is submitted that the candidature of the 4th
respondent has been considered for appointment as State
Election Commissioner when the 4th respondent being the
Principal Advisor to the Chief Minister, which resulted into
issuance of notification, appointing the 4th respondent as
State Election Commissioner vide G.O.Ms.No.20 Panchayat
Raj and Rural Development (E&R) Dept., dated 28.03.2021
and the 4th respondent had tendered her resignation to the
Principal Advisor post on 27.03.2021, the appointment of a
person who served as Principal Advisor to the Chief
Minister, the Executive of the State, as State Election
Commissioner would affect the independence of the State
Election Commission, the independence of the State
Election Commission can be assured only if the appointment
of the Election Commissioner are insulated from the
influence of the political executive and this is the mandate
of the constitution and that the election commission shall be
completely independent of the executive but contrary to the
mandate of the Constitution of India and the direction of
the Hon‟ble Supreme Court in State of Goa & another
( 1 supra), the 4th respondent was appointed as State
Election Commissioner, which is violative of Article 14 and
243K of the Constitution of India, and therefore, the writ of
Quo-warranto lies against the 4th respondent apart from
writ of Mandamus or appropriate writ direction.
3. Respondent No.1 filed Counter Affidavit stating that
the Writ Petition is liable to be dismissed in limini as a Writ
of Quo-Warranto can be issued only when an appointment
is contrary to statutory rules or if the person holding the
public office is not satisfying the stipulated eligibility
criteria.
4. It is stated in the affidavit that a perusal of the
affidavit filed in support of the writ Petition, nowhere shows
any violation of statutory rules or eligibility criteria
stipulated. The Writ Petition is filed merely based on
misunderstanding of the factual situation and misapplication
of the Supreme Court Judgment in the case of State of
Goa & another (1 supra). The Apex Court has held in a
catena of cases that the basic purpose of a Writ of Quo-
Warranto is to confer jurisdiction on Constitutional Courts to
ensure that public office is not held by a usurper without
any legal authority. It is further stated that the Division
Bench of this Court in the case of N. Ramesh Kumar and
others (2 supra) interalia held that the appointment of the
State Election Commissioner made by His Excellency, the
Governor, would be under the discretionary power vested in
the Governor under Article 243K(1) of the Constitution of
India and not under Section 200 of the Panchayat Raj Act,
1994 and that the State Government doesn‟t have any
power to propose prescribe the eligibility or the manner of
the appointment of the State Election Commissioner and
that the words "on the recommendation of the
Government" occurring in Section 200 of the Act are not in
accordance with Article 243K of the Constitution of India.
5. As the incumbent State Election Commissioner was to
retire on 31-03-2021, a note file was circulated to His
Excellency, the Governor, by the Hon'ble Chief Minister,
brining to his notice the judgment in the case of
N. Ramesh Kumar and others (2 supra), requesting His
Excellency, the Governor, to exercise his discretion under
Article 243K of the Constitution of India and appoint a new
State Election Commissioner. In the said Note File, names
of three retired IAS officers was indicated for appointment.
There was no recommendation from the Government nor
was His Excellency, the Governor, was requested to make
an appointment of the State Election Commissioner from
the said three names. His Excellency, the Governor, after
examination of a list of IAS Officers, who had retired in the
last three years having at least 25 years experience and
based on an independent assessment of the Annual
Confidential Report and other criteria, appointed respondent
No.4. Therefore, there is no illegality committed in the
appointment of respondent No.4 as the State Election
Commissioner.
6. It is further stated in the affidavit that the judgment
mentioned in the Writ Petition by the petitioner is totally
inapplicable to the facts of the present case and the
appointment of the respondent No.4 as the State Election
Commissioner is very much within the contours of the
judgment of Hon‟ble Supreme Court. Further, the facts of
the present case are clearly distinguishable from the facts
of the case in State of Goa v Fouziya Imtiaz Shaik
( 1 supra). In the instant case, respondent No.4 was not
holding any office or position either under the State
Government or Central Government as on the date of her
appointment as the State Election Commissioner.
Respondent No.4 demitted her office as the Chief Secretary
to the Government of A.P., on 31.12.2020 and thereafter
she was appointed as Principal Advisor to the Chief Minister.
Respondent No.4 resigned the post of Principal Advisor on
27.03.2021 and she was appointed by His Excellency, the
Governor, as the State Election Commissioner on
28.03.2021.
7. It is not the case of the petitioner that respondent
No.4 was holding any additional charge as in the relied case
and as such, the facts and statutory procedure is totally
variance from the case decided by the Hon‟ble Apex Court.
The question raised by the petitioner in the Writ Petition
comparing the present case to the observations of the
Hon‟ble Supreme Court in the case of State of Goa &
another (1 supra) is totally inapplicable, and as such, the
petitioner has not made out any case to warrant
intervention by this Hon‟ble Court. Hence, he prayed to
dismiss the Petition.
8. Respondent No.2 filed Counter Affidavit stating that
the petitioner in this Writ Petition is seeking issuance of
both the Writs of Mandamus and Quo-warranto. Writ of
Quo-Warranto is sought requiring respondent No.4 to show
by what authority she is entitled to hold the office of the
State Election Commissioner. Though the rules of locus
standi are relaxed to an extent in proceedings relating to a
Writ of Quo-Warranto, the same, however, stringently apply
to the proceedings relating to a Writ of Mandamus. The
Petitioner has not espoused any personal grievance or
violation of any legal/fundamental right with regard to the
above reliefs sought under Mandamus. Therefore, insofar as
the Writ of Mandamus is concerned, the above Writ Petition
is the nature of a Public Interest Litigation.
9. As per Rule 7-A of the Writ Proceedings Rules, 1977,
framed by this Hon'ble Court, every Writ Petition filed in
public interest should conform to the procedure prescribed
and be heard by a Bench of two Judges. Suffice it to state
that without following the procedure prescribed under Rule
7-A, the Affidavit filed in support of the Writ Petition is
improper and amounts to abuse of process of court. The
Petitioner, who is an Advocate by profession, cannot plead
any ignorance in relation thereto. On this ground alone, the
Writ of Mandamus sought by the Petitioner is liable to be
dismissed.
10. Notwithstanding the same, though the concerned
Learned Single Judge of this Court, as per the roster
assigned, would have jurisdiction to adjudicate the Writ of
Quo-Warranto sought by the petitioner, he would have no
jurisdiction to adjudicate the Writ of Mandamus intertwined
therewith, which as already pointed out is in the nature of a
Public Interest Litigation. The same would be in
contravention of the Writ Proceedings Rules, 1977 and the
roster assigned by the Hon‟ble Justice. Needless to mention
that any adjudication made in contravention thereof would
be coram non judice and a nulity. The petitioner has
selectively interpreted the judgment of the Hon‟ble Apex
Court in the case of State of Goa & another ( 1 supra) to
suit his convenience. Therefore, the appointment of
respondent No.4 to the office of the State Election
Commissioner has been made strictly in accordance with
Article 243K of the Constitution and the directions issued by
the Hon‟ble Supreme Court in the said judgment.
11. At this juncture, it is necessary to point out the legal
aspects, which are relevant for adjudication of the lis on
hand including the common order dated 29.05.2020 of this
Court in N. Ramesh Kumar and others ( 2 supra) and the
judgment of the Hon‟ble Apex Court in State of Goa &
another ( 1 supra).
a) Article 243K of the Constitution relates to Elections
to the Panchayats'. Article 243K(1) provides that 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. Article 243K(2) stipulates that 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 grounds 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 243ZA of the Constitution relates to
'Elections to the Municipalities'. Article 243ZA(1) provides
that the superintendence, direction and control of the
preparation of electoral rolls for, and the conduct of, all
elections to the Municipalities shall be vested in the State
Election Commission referred to in Article 243K.
b) Section 200 of the A.P. Panchayat Raj Act, 1994,
prior to its substitution in 2020, provided that the
superintendence, direction and control of the preparation of
electoral rolls for, and the conduct of elections to, all the
Panchayat Raj Institutions shall vest with the State Election
Commission and that for the Governor on the
recommendation of the Government shall appoint a person,
who is holding or who has held an office not less in rank
than that of a Principal Secretary to Government, as State
Election Commissioner, and that 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 grounds 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. The
Hon'ble Governor of the State of Andhra Pradesh, in
exercise of powers as conferred under Section 200(3) of the
said Act, formulated the Andhra Pradesh Panchayat Raj
(Salaries and Allowances and Conditions of Service of State
Election Commissioner) Rules, 1994.
c) Ordinance No.5 of 2020 i.e. Andhra Pradesh
Panchayat Raj (Second Amendment) Ordinance, 2020 dated
10.04.2020 was promulgated substituting Section 200 of
the Andhra Pradesh Panchayat Raj Act, 1994. The amended
Section 200 provided that the superintendence, direction
and control of the preparation of electoral roils for, and the
conduct of elections to, all the Panchayat Raj Institutions
shall vest with the State Election Commission and that the
Governor on the recommendation of the Government shall
appoint a person, who has held an office of the Judge of a
High Court, as State Election Commissioner and that the
State Election Commissioner shall hold office for a term of
three years and be entitled to be considered for re-
appointment for another term of three years, provided that
no person shall hold the office of State Election
Commissioner for more than six years in the aggregate and
that the conditions of service 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 grounds 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, and that on and with effect from the date of
coming into force of the said Ordinance, any person
appointed as State Election Commissioner and holding
office as such shall cease to hold office.
d) Pursuant to the said Ordinance, i) G.O.Ms.No.617,
Panchayat Raj and Rural Development (E&R) Department,
dated 10.04.2020 was issued notifying Andhra Pradesh
Panchayat Raj (Salaries and Allowances, Conditions of
Service, Tenure of State Election Commissioner) Rules,
2020, in supersession of the Andhra Pradesh Panchayat Raj
(Salaries and Allowances and Conditions of Service of State
Election Commissioner) Rules, 1994, ii)
G.O.Ms.No.618,Panchayat Raj and Rural Development
(E&R) Department, dated 10.04.2020, was issued stating
that Mr.N. Ramesh Kumar, who was holding the office of
the State Election Commissioner at that time, ceases to
hold the said office with effect from 10.04.2020, and iii)
G.O.Ms No.619, Panchayat Raj and Rural Development
(E&R) Department, dated 11.04.2020, was issued
appointing Justice V. Kanagaraj (Retd.) as State Election
Commissioner in place of Mr.N. Ramesh Kumar.
e) The validity of the aforesaid Ordinance as well as
G.O.Ms.Nos.617 to 619 dated 10.04.2020 and 11.04.2020,
fell for consideration before this Hon'ble Court in the case of
N. Ramesh Kumar and others ( 2 supra). This Hon'ble
Court by common order dated 29.05.2020 set aside the
aforesaid Ordinance as well as G.O.Ms.Nos.617 to 619
dated 10.04.2020 and 11.04.2020, by holding inter alia
that the appointment of the State Election Commissioner
shall be made by the Hon'ble Governor in exercise of his
discretionary power under Article 243K(1) of the
Constitution, but not under Section 200 of the A.P.
Panchayat Raj Act, 1994 and the expression conditions of
service and tenure of office in Article 243K(2) of the
Constitution do not include 'appointment', and the State
Legislature does not have any power to propose or
prescribe the eligibility or the manner of appointment of the
State Election Commissioner and the words 'on the
recommendation of the Government' occurring in Section
200 of the A.P.Panchayat Raj Act, 1994 (both unamended
as well as amended) are not in accordance with the Article
243K of the Constitution, and the State Legislature is
required to re-visit the definitions in Section 2(39) and
2(40) and the provisions of Section 200 of the
A.P.Panchayat Raj Act, 1994, in accordance with the spirit
of the Constitution as expeditiously as possible. The validity
of the said common order dated 29.05.2020 of this Hon'ble
Court in N. Ramesh Kumar and others ( 2 supra) is
under challenge and pending consideration before the
Hon'ble Supreme Court.
f) Thereafter, the validity of the order dated
04.02.2020 issued by the Director of Municipal
Administration, Goa, in relation to reservation of wards for
11 Municipal Councils within the State of Goa, fell inter
aliafor consideration before the Hon'ble Supreme Court of
India in the case of State of Goa & another (1 supra). In
the said case, on 03.11.2020, the Hon'ble Governor of Goa
appointed the Law Secretary of the Government of Goa, a
member of the IAS, as State Election Commissioner, which
duties were to be in addition to his duties as Law Secretary.
In that context, the Hon'ble Supreme Court by its judgment
dated 12.03.2021 held that when the State Election
Commissioner is none other than the Law Secretary to the
Government of Goa, the whole process of the elections is
faulted at the start as the State Election Commissioner is
not an independent body as mandated by Article 243K and
that the State Election Commissioner has to be a person
who is independent of the State Government as he is an
important constitutional functionary who is to oversee the
entire election process and that giving an additional charge
of such an important and independent constitutional office
to an officer who is directly under the control of the State
Government is a mockery of the constitutional mandate,
and that all State Election Commissioners appointed under
Article 243K have to be independent persons who cannot be
persons occupying any post or office under the Central or
any State Government.
12. It is stated in the affidavit that prior to the completion
of the term of Mr. N. Ramesh Kumar as State Election
Commissioner on 31.03.2021, the office of the Hon'ble
Governor received Note dated 24.03.2021 from the office of
the Chief Minister with respect to the statutory position and
legal regime applicable to the appointment of the State
Election Commissioner. By the said Note, while requesting
the Hon'ble Governor to exercise his discretion under Article
243K of the Constitution to appoint a new State Election
Commissioner, the office of the Chief Minister suggested
names of three retired IAS officers viz., the 4th
Respondent, Mr. M. Samuel and Mr. L. Prem Chandra
Reddy, for the said post. The office of the Hon'ble Governor
was well aware of the directions of this Hon'ble Court in N.
Ramesh Kumar and others ( 2 supra) and in State of
Goa & another (1 supra), and for the said reason, decided
to independently consider and assess persons for the said
post, without reference to Section 200 of the AP Panchayat
Raj Act, 1994, and the aforesaid Note from the office of the
Chief Minister, in a uniform and unbiased manner.
13. Considering the fact that the State Election
Commissioner is an important constitutional office,
responsible for the superintendence, direction, control of
preparation of electoral rolls and for conduct of all elections
to Panchayat Raj bodies and Municipal bodies in the State,
the office of the Hon'ble Governor decided to consider
persons, who have sufficient knowledge and experience in
handling administrative matters, election matters, quasi
judicial matters, matters relating to the functioning of the
Government, etc. The aforesaid matters are primarily the
core functioning areas of IAS Officers, who play an essential
part in the preparation and management of electoral rolls in
the capacity of Electoral Registration Officers. In addition,
they have direct field experience in conducting elections to
Lok Sabha, State Assembly, State Legislative Council, etc.,
as Returning Officers. Further, as District Election Officers,
they have in depth knowledge with regard to the overall
conduct of elections at the District level including Panchayat
elections. For the said reason, the office of the Hon'ble
Governor decided to consider IAS officers, having at least
25 years of experience, who retired in the last three years,
for the post of the State Election Commissioner.
Accordingly, the office of the Hon'ble Governor considered
11 IAS officers, who satisfied the abovementioned criteria
and retired during the period 2018 to 2020, for
appointment to the post of State Election Commissioner
including the candidature of Mr. M. Samuel, I.A.S.. (retired
in 2014) and Mr. L. Prem Chandra Reddy, L.A.S., (retired in
2016), who were suggested by the office of the Chief
Minister in the aforesaid Note dated 24.03.2021. Further,
the Annual Performance Appraisal Reports (APAR), also
known as Annual Confidential Reports (ACR), of all the
above mentioned individuals for the last 5 years of their
service as well as details relating to the disciplinary
proceedings initiated or cases pending against them, were
duly considered by the Hon'ble Governor, in his sole
discretion, for the purpose of making an appointment to the
post of the State Election Commissioner.
14. It is pertinent to note that Annual Performance
Appraisal Reports are written for All India Service Officers in
accordance with the All India Services (Performance
Appraisal Report) Rules, 2007. Appraisal Reports are very
important documents, which reflect the performance,
competency and integrity, of an officer. They are written,
reviewed and assessed at three stages i.e. by the Reporting
Authority, the Reviewing Authority and the Accepting
Authority respectively. They are confidential documents and
the numerical grades on the scale of 1 to 10 are awarded
on the work out put, personal attributes and functional
competency of an officer. Therefore, taking all of the
aforesaid aspects into consideration, the Hon'ble Governor,
in his sole discretion, taking into account the unblemished
career of the 4th Respondent and the maximum possible
A.P.A.R grading received by her, decided to appoint her as
the State Election Commissioner. It is necessary to point
out that the 4th Respondent received the highest possible
grading of 10 in her APAR for all the last five years of her
service, which no other candidate in the zone of
consideration received. Further, no cases/proceedings are
pending against the 4th Respondent. However, in view of
the directions issued by the Hon'ble Supreme Court in
State of Goa & another ( 1 supra), the Hon'ble Governor
decided to appoint the 4th Respondent as State Election
Commissioner subject to the condition that she resigns from
the post she was holding with the State Government i.e.
the Principal Advisor to the Chief Minister. Accordingly, the
4th Respondent tendered her resignation on 26.03.2021 and
the same was accepted by the competent authority on
27.03.2021. After the 4th Respondent resigned from the
post of the Principal Advisor to the Chief Minister on
27.03.2021, the Hon'ble Governor appointed her as the
State Election Commissioner vide G.O.Ms.No.20, Panchayat
Raj and Rural Development (E&R) Department, dated
28.03.2021, in exercise of his powers under Article 243K of
the Constitution. After her resignation from the post of the
Principal Advisor to the Chief Minister, the 4th Respondent is
no longer under the direct control of the State Government.
The conjecture of the Petitioner to malign the integrity and
independence of the 4th Respondent merely because she
worked as the Principal Advisor to the Chief Minister prior to
her appointment as State Election Commissioner is highly
reproachful. As already stated, there is no factual or legal
basis for the same.
15. It is well settled that the scope of judicial review
exercised by this Hon'ble Court under Article 226 of the
Constitution over the discretion exercised by an
Administrative Authority, much less the Hon'ble Governor
under Article 243K of the Constitution, is very limited.
Nowhere in the Affidavit filed in support of the above Writ
Petition does the Petitioner allege that the said discretion
has been exercised by the Hon'ble Governor arbitrarily, with
a malafide intention or for irrelevant considerations. On the
basis of vague assertions and baseless allegations, the
Petitioner has filed the above Writ Petition, calling into
question the appointment of the 4th Respondent to a high
constitutional office and the same is vexatious and amounts
to abuse of process of court. For the reasons stated supra,
the above Writ Petition is devoid of any merits and the
same is liable to dismissed.
16. Respondent No.3 filed Counter Affidavit stating that in
the Writ Petition, the Writ Petitioner seeking issuance of
both the Writ of Mandamus and Quo-warranto
simultaneously. Having prayed for the Writ of Mandamus,
the Petitioner failed to espouse any personal grievance or
violation of any of his legal or fundamental right. It is a well
settled legal principle that any Petitioner, invoking the
jurisdiction of this Hon'ble Court under Article 226 of the
Constitution of India, has to establish his legal right and its
infringement and in the absence of the same, a writ of
mandamus cannot be sought in his individual capacity.
Further, it is also settled that the Petitioner in his individual
capacity cannot espouse any grievance which involves a
public interest at large. In view of the above, the present
Writ Petition seeking a Writ of Mandamus is not
maintainable and is liable to be dismissed in limini.
17. It is further stated that while seeking the Writ of Quo-
Warranto, the petitioner majorly relied on the judgment of
the Apex Court in State of Goa & another ( 1 supra), but
the material on record suggest otherwise as he incorrectly
interpreted the above judgment. It is evident from the
material on record that the appointment of respondent No.4
to the office of the State Election Commissioner has been
made strictly in accordance with Article 243K of the
Constitution of India and also in accordance with the
judgment rendered by the Hon‟ble High Court in the case of
N. Ramesh Kumar and others ( 2 supra).
18. A bare perusal of the material available on record
demonstrates that respondent No.4 was appointed to the
post of Chief Secretary to Government vide
G.O.Ms.No.2563, dt. 13.11.2019 and she took charge as
Chief Secretary to Government on 14.11.2019 and retired
from service on 31.12.2020. Thereafter, respondent No.4
was appointed as Principal Advisor to the Chief Minister with
effect from 01.01.2021. On 26.03.2021 she tendered her
resignation from the post of the Principal Advisor to the
Chief Minister and the same was accepted by the competent
authority on 27.03.2021. It is further stated that it is only
after the resignation by respondent No.4 from the post of
Principal Advisor to the Chief Minister on 27.03.2021, His
Excellency, the Governor appointed respondent No.4 as the
State Election Commissioner vide G.O.Ms.No.20, dt.
28.03.2021 in exercise of his powers under Article 243K of
the Constitution of India. Therefore, pursuant to her
resignation from the post of the Principal Advisor to the
Chief Minister, respondent No.4 is no longer under direct
control or is anyway allied to the State Government. Thus,
the Judgment relied on by the petitioner is not applicable to
the present facts of the case as the appointment of
respondent No.4 is in visible consonance with the said
judgment.
19. Furthermore, the Petitioner while seeking a Writ of
such nature as that of Quo-Warranto, placing reliance on
the said judgment, the onus lies on the Petitioner to
establish that the 4th Respondent is not independent of the
influence of the State Government at the time of her
appointment and as to how the appointment is in
contravention of the said judgment. The Writ Affidavit or
the material filed by the Petitioner is completely silent
about the same. Instead of establishing such contravention
or illegality, the Petitioner simply adhered to making
baseless and unsubstantiated allegations against the
Respondents and is challenging the integrity of the 4th
Respondent merely because the 4th Respondent worked as
the Principal Advisor to the Chief Minister prior to her
appointment as State Election Commissioner. As such this
Writ petition is wholly misconceived.
20. The allegations made by the petitioner against
respondent No.4 are baseless and are not backed by any
evidence whatsoever. Nothing in the affidavit or the
material available on record establishes the alleged lack of
independence of respondent No.4 or even slightly suggests
that the impugned appointment is arbitrary or illegal in
nature. Therefore, he prayed to dismiss the Writ Petition.
21. Respondent No.4 filed Counter Affidavit stating that
the Writ Petition filed questioning the appointment of
respondent No.4 as the State Election Commissioner is not
maintainable as none of the grounds raised by the
petitioner falls within the contours for issuance of Writ of
Mandamus or Writ of Quo-Warranto. For issuance of Writ of
Mandamus, the petitioner has to establish his legal right
and its infringement and in the absence of the same, the
issuance of the said Writ by this Hon‟ble Court does not
arise. As the petitioner failed to establish his legal right, the
present Petition seeking to issue Writ of Mandamus is not
maintainable. As regards the issuance of Writ of Quo-
Warranto, for the reasons stated above, the same is not
maintainable as the same is based on the judgment of
Hon‟ble Supreme Court in „State of Goa and another
referred above, which is inapplicable to the present case on
hand. Thus, the present Writ Petition is wholly misconceived
and it cannot be countenanced either in law or on facts.
22. It is stated in the Counter Affidavit that respondent
No.4 is an Officer of 1984 batch of Indian Administrative
Service (IAS) borne on the Andhra Pradesh State Cadre.
She was appointed to the Post of Chief Secretary to
Government, Vide G.O.Ms.No.2563, dt. 13.11.2019 and she
took charge on 14.11.2019 and thereafter she retired from
service on 31.12.2020. After superannuation i.e.,
31.12.2020, the Government Vide G.O.Rt.No.2011, dt.
22.12.2020 has appointed her as Principal Advisor to the
Chief Minister to look after different subjects and as
allocated by the Chief Minister from time to time. He
resigned from the post of Principal Advisor to Chief Minister
on 27.03.2021. Thereafter, she appointed as the State
Election Commissioner through G.O.Ms.No.20, dt.
28.03.2021. As on the date of appointment, he was not
occupying any post under the State Government or the
Central Government.
23. It is stated that the premise on which the present writ
petition filed is the judgment of the Hon'ble Supreme Court
in " State of Goa & another (1 supra), wherein the
Hon'ble Supreme Court, in exercise of its powers under
Article 142 of the Constitution of India has held that the
State Election Commissioner must be a person, who is
independent of the State Government and that all the State
Election Commissioners appointed under Article 243K of the
Constitution of India have to be independent persons, who
shall not be occupying a post or office under the Central or
any State Government. The Hon'ble Supreme Court, in the
above judgment was dealing with a case where the
Governor of Goa appointed the Law Secretary of the
Government of Goa, a member of the IAS., as State
Election Commissioner which duties were to be in addition
to his duties as Law Secretary. In this background, the
Hon'ble Supreme Court has held that State Election
Commissioner, being an important and independent
Constitutional Office, cannot be under the control of the
State Government and thus, held that all State Election
Commissioners appointed under Art.243K of the
Constitution of India in the length and breadth of India
must independent persons, who cannot be occupying a post
or officer under the Central or any State Government. Thus,
by issuing such directions, Hon'ble Supreme Court insulated
the said Constitutional Post, thereby making it free from
any type of control from the State Government.
24. It is further stated that the Hon'ble High Court in its
judgment dated 29.05.2020 in the case of N. Ramesh
Kumar and others (2 supra) held that the power of
appointment of State Election Commissioner is discretionary
and vested on the Governor and Sub-section (2) of Section
200 of A.P. Panchayat Raj Act, 1994 was not as per the
Constitutional spirit and that 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 and the appointment must be made by the
Governor in exercise of the power under Article 243K of the
Constitution of India. In conformity with the said Judgment
and also in exercise of the powers vested under Article
243K of Constitution of India, Hon'ble Governor has
appointed R.4 and accordingly, G.O.Ms.No.20, Panchayat
Raj & Rural Development (E & R) Department, dated
28.03.2021 was issued appointing R.4 as State Election
Commissioner.
25. It is further stated that considering the proven
impeccable track record as an Officer of the Indian
Administrative Service for about 36 years and having
worked in several key positions and having served in the
highest posts both in the Centre and the State, the Hon‟ble
Governor has appointed Respondent No.4 to the
Constitutional Post of the State Election Commissioner by
reposing confidence in her capabilities.
26. The allegations of the petitioner pertaining to previous
stints as Chief Secretary and later Principal Advisor to the
Chief Minister have bearing on independence of the
respondent No.4 as State Election Commissioner do not
merit any consideration as respondent No.4 was not
occupying any such positions as on the date of her
appointment. Therefore, the said allegations are wholly
false and baseless apart from being as vague and the
petitioner cannot assume that there would be lack of
independence in discharge of duties as State Election
Commissioner. Therefore, respondent No.4 prays to dismiss
the Petition.
27. In reply affidavit of the petitioner to the counter
affidavit filed by the 1st respondent, he reiterated the
contents in the affidavit filed along with the writ petition
and stated that according to para No.3, which referred
about the judgment in the case of N. Ramesh Kumar and
others ( 2 supra), wherein this Hon‟ble Court held that the
appointment of State Election Commission made by His
Excellency, the Governor would be under the discretionary
power vested in under Article 243K(1) of the Constitution of
India and not under Section 200 of the Panchayat Raj Act,
1994 and that the State Government does not have any
power to propose and prescribe the eligibility or the manner
of the appointment of the State Election Commission but
contrary to this, a Note files was circulated to His
Excellency, the Governor by the Head of Executive of the
State, names of three retired IAS Officers was merely
indicated for appointment and the 4th respondent is one
among three IAS officers and the names figured in the Note
were also held an office not less in rank than that of
Principal Secretary to Government and thus, the
appointment of 4th respondent as State Election Officer is
contrary to the mandate of Article 243K(1) of the
Constitution of India.
28. In reply affidavit of the petitioner to the counter
affidavit filed by the 2nd respondent, it is stated that para
No.3 of the counter-affidavit states that the Writ Petitioner
has not espoused any personal grievance or violation of any
legal/fundamental right with regard to the relief sought
under Writ of Mandamus and insofar as the Writ of
Mandamus is concerned, the Writ Petition is the nature of a
Public Interest Litigation. As per Rule 7-A of the Writ
Proceedings Rules, 1977, every writ petition filed in public
interest should conform to the procedure prescribed and be
heard by a Bench of Two judges are untenable since the
petitioner is an elector and 3rd respondent office is
constitutional office constituted for the purpose democratic
process, hence, he can invoke Article 226 of the
Constitution of India by way of writ petition, the present
writ cannot be termed as Public Interest Litigation.
29. It is also stated that the averment made in paragraph
7 of the counter-affidavit of the 2nd respondent is that there
was a note file which contains the names of three IAS
Officers apart from the list Eleven (11) IAS Officers
considered for appointment as State Election Commissioner,
a reason was assigned for appointment of 4th respondent as
State Election Commissioner but a prudent man can
understand the purpose of Note file. It appears names of
three retired IAS officers was merely indicated for
appointment in the Note file but out of three IAS officers
only one IAS officer, the 4th respondent has fulfilled the
requirement for appointment as State Election
Commissioner gives a presumption that the decision to
appoint the 4th respondent was predetermined.
30. In reply affidavit of the petitioner to the counter
affidavit filed by the 3rd respondent, it is stated that para
No.2 of the counter-affidavit states that since the petitioner
is an elector and 3rd respondent office is constitutional office
constituted for the purpose democratic process, hence, he
can invoke Article 226 of the Constitution of India by way of
writ petition, the present writ cannot be termed as Public
Interest Litigation. As such, the judgment of the Hon‟ble
Supreme Court in State of Goa & another (1 supra) is
applicable to the present case.
31. In reply affidavit of the petitioner to the counter
affidavit filed by the 4th respondent, it is stated that the
before the appointment as A.P. State Election
Commissioner, Respondent No.4 got extension of service as
Chief Secretary for a period of Six months after attaining
the age of superannuation and before completion of
extended tenure, she was appointed as State Election
Commissioner. Therefore, the appointment of the State
Election Commissioner is contrary to the mandate of Article
243k(1) of the Constitution of India and the law declared by
the Hon‟ble Supreme Court in State of Goa & another
( 1 supra). The petitioner is an elector and respondent No.3
office is constitutional office constituted for the purpose of
democratic process and the petitioner and any elector can
invoke Article 226 of the Constitution of India by way of
Writ Petition. The Judgment of Hon‟ble Supreme Court in
the case of State of Goa & another (1 supra) is applicable
to the present facts of the case.
32. Learned counsel for the petitioner submits that the
petitioner is a practicing Advocate in various Courts at
Vizianagaram District and he is an Elector of Salur
Municipality, Vizianagaram District, and as such, he is
having locus standi to file this Writ Petition seeking Writ of
Mandamus. The petitioner has not espoused any public
cause in the Writ Petition and as such, it cannot be treated
as Public Interest Litigation and as such, the learned Single
Judge can hear the Writ Petition. He relied on a judgment of
this Court in W.P.No.7778 of 2021, to substantiate his
contentions.
33. Learned counsel for the petitioner submitted that
appointment of respondent No.4 as Andhra Pradesh State
Election Commissioner is contrary to the mandate of Article
243K (1) of the Constitution of India, since before
appointment as State Election Commissioner, respondent
No.4 got extension of service for a period of Six months
after attaining the age of superannuation as Chief Secretary
and before completion of extended tenure, respondent No.4
was appointed as Principal Advisor to the Hon‟ble Chief
Minister with cabinet rank and later as State Election
Commissioner. Therefore, the appointment of the State
Election Commissioner is contrary to the mandate of Article
243k (1) of the Constitution of India and the law declared
by the Hon‟ble Apex Court in State of Goa & another
( 1 supra).
34. Learned counsel for the respondents advanced their
arguments in detail, however, almost all reiterating the
averments in the Counter Affidavits.
35. Particularly, Sri C.V. Mohan Reddy, learned Senior
Counsel appearing for Respondent No.2, submitted that writ
of Quo-warranto is sought requiring the 4th respondent to
show by what authority she is entitled to hold the office of
the State Election Commissioner. Except stating in the
affidavit filed in support of the above writ petition that the
petitioner is an elector of Salur Municipality, Vizianagaram
District, there is no averment in the said affidavit as to how
the petitioner is personally aggrieved by the appointment of
the 4th respondent as State Election Commissioner. As
such, no violation of any fundamental or statutory right of
the petitioner is espoused in the said writ petition. Insofar
as the writ of Mandamus is concerned, the above writ
petition is in the nature of a Public Interest Litigation. As
per Rule 7-A of the Writ Proceedings Rules, 1977, framed
by this Hon‟ble Court, every writ petition filed in public
interest should conform to the procedure prescribed and be
heard by a Bench of two Judges. Suffice it to state that
without following the procedure prescribed under Rule 7-A,
the Affidavit filed in support of the Writ Petition is improper
and amounts to abuse of process of Court. On this ground
alone, the Writ of Mandamus sought by the petitioner is
liable to be dismissed. Though the concerned learned
Single Judge of this Hon‟ble Court, as per the roster
assigned, would have jurisdiction to adjudicate the Writ of
Quo Warranto sought by the petitioner, he would have no
jurisdiction to adjudicate the Writ of Mandamus intertwined
therewith, which as already pointed out is in the nature of a
Public Interest Litigation and the same would be in
contravention of the Writ Proceedings Rules, 1977 and the
roster assigned by the Hon‟ble Chief Justice. Needless to
mention that any adjudication made in contravention
thereof would be coram non judice and a nullity. Therefore,
for the said reason, the Writ Petition is required to be heard
by a Bench of two Judges. In support of his contentions, he
placed reliance on a judgment reported in State of
Rajasthan v. Prakash Chand3, Chawali v. State of UP
and others 4 , and In Re, Suo Motu Cognisance by a
Special Bench of 11 Judges v. Union of India5.
36. He further submitted that Writ of Quo-Warranto does
not lie in the circumstances narrated in the Affidavit filed in
support of the Writ Petition as appointment of the 4th
Respondent is perfectly legal and in consonance with Article
243 K of Constitution of India read with the Division Bench
Judgment of this Hon'ble Court in N. Ramesh Kumar and
others (2 supra), wherein it was held that the
Government/Legislature cannot prescribe qualifications for
the post of the State Election Commissioner and the Hon'ble
Governor has to take his own decision in choosing a person
to occupy the said position of the State Election
Commissioner.
37. The only and sole ground raised by the Petitioner in
Affidavit filed in support of the Writ Petition, and during the
course of arguments, and repeatedly adverted to by the
Counsel for the Petitioner regarding the alleged ineligibility
of the 4th Respondent to be appointed as the State Election
Commissioner, is that she is not an independent person and
therefore, her appointment is in contravention of the
(1998)1SCC1
2015(1)ADJ 387
2020 CriLJ1740
judgment dated 12.03.2021 of Hon'ble Supreme Court in
State of Goa & another (1 supra).
38. The Hon'ble Supreme Court by its aforesaid judgment
dated 12.03.2021 held that when the State Election
Commissioner is none other than the Law Secretary to the
Government of Goa, the whole process of the elections is
vitiated from the beginning as the State Election
Commissioner is not an independent body as mandated by
Article 243K and that the State Election Commissioner has
to be a person who is independent of the State Government
as he is an important constitutional functionary who is to
oversee the entire election process and that giving an
additional charge of such an important and independent
constitutional office to an officer who is directly under the
control of the State Government is a mockery of the
constitutional mandate, and that all State Election
Commissioners appointed under Article 243K have to be
independent persons who cannot be persons occupying any
post or office" under the Central or any State Government.
The facts of the said case are completely different and
distinguishable from the facts of the lis on hand.
39. In the present case, the 4th Respondent resigned from
the post of Principal Advisor on 26.03.2021 and her
resignation was accepted on 27.03.2021, and thereafter,
she was appointed as State Election Commissioner on
28.03.2021 and in fact Hon'ble Governor selected her out of
the names he considered, subject to the condition of the 4th
Respondent relinquishing the office of Principal Advisor to
the Hon'ble Chief Minister. As on the date of her
appointment, the 4th Respondent was not holding any post
under the Government. As Respondent No.4, on the date of
her appointment as the State Election Commissioner, was
not working for the Government or under the control of the
Government, either State or Central, in any way, she is an
independent person eligible to be appointed to the said
post.
40. In addition, there is no averment in the Affidavit filed
in support of the above Writ Petition as to why or how the
Respondent No.4 is not an independent person except
stating that the Respondent No.4 was appointed as the
Principal Advisor to the Chief Minister and her name was
recommended in the Note circulated by Chief Minister's
Office to the Hon'ble Governor. Therefore, the allegations
made in this regard in the Affidavit filed in support of the
above Writ Petition are mere conjectures and without any
factual basis.
41. Learned Counsel placed Reliance on a Judgment
reported in the case of State of Madhya Pradesh v. Ajay
Singh 6 , Voestalpine Schienen GMBH v. Delhi Metro
Rail Corporation Limited7, and Madras Bar Association
v. Union of India8, to support the contention that once the
tenure and other conditions of service of the 4 Respondent
are secured and not dependent on the will of the
Government, it implies that the 4th Respondent functions as
an independent person, unless facts to the contrary are
pleaded and proved by the Petitioner.
42. It is well settled that scope of judicial review is limited
to the deficiency in the decision making process but not the
decision itself. He placed reliance on a judgment reported
in Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai
Patel9, in support of the said legal proposition.
43. The office of the Hon'ble Governor decided to
independently consider and assess persons for the post of
State Election Commissioner, without reference to Section
200 of the AP Panchayat Raj Act, 1994, in view of Division
Bench Judgment dated 10.04.2020 in the case of
N. Ramesh Kumar and others (2 supra), and the
aforesaid Note from the office of the Chief Minister, in a
uniform and unbiased manner. The Annual Performance
Appraisal Reports (APAR), also known as Annual
1993 (10) SCC 302
2017 (4) SCC 665
2021 SCC Online SC 463
2006 (8)SCC 200
Confidential Reports (ACR), of all the said 13 mentioned
individuals for the last 5 years of their service as well as
details relating to the disciplinary proceedings initiated or
cases pending against them, were duly considered by the
Hon'ble Governor, in his sole discretion, for the purpose of
making the appointment to the post of the State Election
Commissioner.
44. The Hon'ble Governor, in his sole discretion, taking
into account the unblemished career of Respondent No.4
and the maximum possible APAR grading received by her,
decided to appoint her as the State Election Commissioner.
It is necessary to point out that Respondent No.4 received
the highest possible grading of 10 in her APAR for all the
last five years of her service, which no other candidate in
the zone of consideration received. Further, no
cases/proceedings are pending against Respondent No.4.
45. It is not the case of the Petitioner that the procedure
evolved by the Hon'ble Governor to make appointment to
the post of State Election Commissioner is arbitrary,
malafide or for extraneous considerations. Therefore, the
scope of judicial review in the above Writ Petition is very
limited. In support of his contentions, he placed reliance on
a judgment reported in Narayan Dutt v. State of
Punjab10, and BP Singhal v. Union of India11.
46. When the procedure evolved by the Hon'ble Governor
is fair and transparent, this Hon'ble Court, while exercising
jurisdiction under Article 226 of the Constitution of India,
would not be pleased to step into the shoes of the Hon'ble
Governor, and find some other candidate more suitable
than Respondent No.4. It is also not the case of the
Petitioner that some other candidate in the zone of
consideration is either more suitable or qualified than the
Respondent No.4 to hold the post of State Election
Commissioner.
47. He also placed reliance on a judgment reported in
Arikala Narasa Reddy v. VenkataRam Reddy
Reddygari 12 , and V.K.Majotra v. Union of India 13 ,
wherein it was stated that this Hon'ble Court, while
exercising jurisdiction under Article 226 of the Constitution
of India, would not be pleased to go beyond the pleadings
of the parties, and conduct a roving enquiry.
As there are no merits in the Writ Petition, the learned
counsel for respondent No.2 prayed to dismiss the petition.
2011 (4) SCC 353
2010 (6) SCC 331
2014 (5) SCC 312
2003 (8) SCC 40
48. Learned Senior Counsel also submitted his written
arguments.
49. This Court gave anxious consideration to the
submissions of the respective counsel. Carefully perused
the material available on the record.
50. The sum and substance of the case is as follows:
(i) The petitioner is an Advocate by profession in
Vizianagaram and an elector of Solur
Municipality, Vizianagaram District.
(ii) Respondent No.4 was appointed as State
Election Commissioner of Andhra Pradesh. As
per the petitioner, the appointment of
respondent No.4 as State Election Commissioner
is contrary to the mandate of Article 243K (1) of
the Constitution of India and contrary to the law
declared by the Hon‟ble Apex Court in the case
of State of Goa and another ( 1 supra).
iii) The contention of the respondents is that
except stating in the affidavit that the petitioner is
an Elector of Salur Municipality, Vizianagaram
District, there is no averment to show how the
petitioner is personally aggrieved by the
appointment of respondent No.4 as State Election
Commissioner and there is no mention about
violation of any fundamental or statutory right of
the petitioner espoused in this Writ Petition. As
such, the Writ of Mandamus is concerned, it is to
be treated as a Public Interest Litigation.
iv) As per Rule 7-A of the Andhra Pradesh High
Court Writ Proceeding Rules, 1977, every Writ
Petition filed in public interest should be heard by a
bench of two judges. Though the concerned
Learned Single Judge, as per the roster assigned,
would have jurisdiction to adjudicate the Writ of
Quo-Warranto sought by the petitioner, he would
have no jurisdiction to adjudicate the Writ of
Mandamus which was filed in the nature of Public
Interest Litigation.
v) The Hon‟ble Governor, in his sole discretion,
taking into account the Annual Performance
Appraisal Reports, decided to appoint respondent
No.4 as State Election Commissioner and there is
no irregularity in it. The said action of appointing
respondent No.4 as State Election Commissioner is
in consonance with Article 243k(1) of the
Constitution of India and not in any contravention
of the Judgment dated 12.03.2021 of the Hon‟ble
Apex Court in the case of State of Goa & another
( 1 supra).
51. It is the contention of the learned counsel for the
petitioner that the petitioner is an elector of Salur
Municipality and the petitioner has the right to participate in
the local body elections as an Elector or as a contesting
candidate. Respondent No.4, who worked as Chief
Secretary of the State Government and whose tenure was
extended for Six months after attaining the age of
superannuation and who was appointed as Principal Advisor
of the Hon‟ble Chief Minister with cabinet rank prior to her
retirement as Chief Secretary, was appointed as State
Election Commissioner, and as such, she would not act
fairly and independently in discharging her duties as State
Election Commissioner, and as such, the petitioner will be
deprived of his rights as an Elector.
52. The State Election Commissioner has to discharge the
functions of superintendence, direction and control of the
preparation of electoral rolls for, and the conduct of, all
elections to the Local Bodies. As and when respondent
No.4 was appointed at the instance of the political executive
of the State, by any stretch of imagination, one cannot
come to a conclusion that the 4th respondent is an
independent person for appointment as State Election
Commissioner, high constitutional office, which has to
conduct elections under Part IX and IX A of the Constitution
of India.
53. On the other hand, the contention of the learned
counsel for the respondents is that the petitioner has not
made out any case to show any violation of constitutional or
statutory rights of the petitioner by the appointment of
respondent No.4. In the absence of the same, the Writ of
Mandamus filed by the petitioner has to be considered as a
Writ of Mandamus filed in the nature of Public Interest
Litigation. The Writ of Mandamus in the nature of Public
Interest Litigation has to be heard by a Division Bench of
this High Court as per Rule 7-A of the Andhra Pradesh Writ
Proceedings Rules, 1977.
54. It is an admitted fact that the petitioner is an Elector
of Salur Municipality. He has the right to participate in the
local body elections as an Elector or as a contesting
candidate. The petitioner is having doubt about the
independency of respondent No.4, who is appointed as
State Election Commissioner, as the State Election
Commissioner has to discharge the duties from the
preparation of electoral rolls to conduct elections to all the
local bodies. As respondent No.4 got extension for six
months after attaining the age of superannuation as Chief
Secretary of the State and was later appointed as Principal
Advisor to the Chief Minister before retirement as Chief
Secretary, the petitioner is doubting the independency of
respondent No.4. Accordingly, he filed the Writ of
Mandamus challenging the appointment of respondent No.4
along with Writ of Quo-Warranto. In our view, the Writ of
mandamus filed by the petitioner in the present form is
maintainable as he has not espoused any public cause
except to espouse his personal grievance as an elector.
55. It is settled law that free and fair elections are the
foundation of democracy, right to contest in the election
and elect a representative is a constitutional right. If such
right is violated or infringed, any citizen can approach the
Court for redressal.
56. When an identical issue aroused in W.P.No.7778 of
2021, this Court, after a detailed consideration and
discussion on this aspect, passed a reasoned order dated
21.05.2021 and held as under:
" In view of my foregoing discussion, I hold that the
petitioner has locus standi to maintain the writ petition
under Article 226 of the Constitution of India in the present
form of the writ petition, as filed before this Court, as it is
not in contravention of Rule 7-A of the Writ Proceeding
Rules or Public Interest Litigation Rules. Accordingly, Point
No.1 is answered in favour of the petitioner and against
the respondents in W.P.No.7778 of 2021".
57. In the present case also, following the Order of this
Court in the above mentioned case, this Court holds that
the Writ of Mandamus filed by the petitioner under Article
226 of the Constitution of India in the present form of the
Writ Petition is maintainable as it is not in contravention of
Rule 7-A of the Writ Proceeding Rules or Public Interest
Litigation Rules.
58. As per the material available on record, prior to
completion of the term of Mr. N. Ramesh Kumar as State
Election Commissioner on 31.03.2021, the office of the
Hon‟ble Governor received a Note dated 24.03.2021 from
the Chief Minister, requesting His Excellency, the Governor,
to exercise his discretion under Article 243K of the
Constitution of India to appoint a new State Election
Commissioner. The office of the Chief Minister suggested
the names of three retired IAS officers viz., the 4th
Respondent, Mr. M. Samuel and Mr. L. Prem Chandra Reddy
for the said post.
59. It appears that the Hon‟ble Governor considering the
importance of the State Election Commissioner as
constitutional authority responsible for the superintendence,
direction, control of preparation of electoral rolls and for
conducting of all elections to Panchayat Raj bodies and
Municipal bodies in the State, decided to consider the
persons, who have sufficient knowledge and experience in
handling administrative matters, election matters, quasi
judicial matters, matters relating to the functioning of the
Government, etc. For that purpose, the Hon‟ble Governor
decided to consider IAS Officers having at least 25 years of
experience, who retired in the last three years for the post
of the State Election Commissioner. Accordingly, the
Hon'ble Governor considered 11 IAS officers including
Respondent No.4, who satisfied the criteria considered by
the Hon‟ble Governor and who retired during the period
2018 to 2020. In addition to the 11 IAS Officers, the
Hon‟ble Governor also considered the names of two Officers
suggested by the Chief Minister in the Note dated
24.03.2021. The Annual Performance Reports of the said
Officers for the last five years of their service as well as the
details relating to the disciplinary proceedings initiated or
cases pending against them were also considered by the
Hon'ble Governor to make appointment to the post of the
State Election Commissioner.
60. Taking all the aspects into consideration, the Hon‟ble
Governor decided to appoint Respondent No.4 as State
Election Commissioner. The Hon‟ble Governor appointed
Respondent No.4 as State Election Commissioner vide
G.O.Ms.No.20 Panchayat Raj and Rural Development (E&R),
dated 28.03.2021 by exercising his powers under Article
243K of the Constitution of India.
61. There is no dispute about the fact that respondent No.4
worked as Chief Secretary and her services were extended
for Six months by the Central Government basing on the
recommendation of the State Government. It is also an
admitted fact that respondent No.4 was appointed as
Principal Advisor to the Chief Minister. Respondent No.4
tendered her resignation on 26.03.2021 and it was
accepted by the competent authority on 27.03.2021 from
the post of the Principal Advisor to the Chief Minister.
Respondent No.4 was appointed on 28.03.2021 as State
Election Commissioner by the Hon‟ble Governor. So, as on
the date of appointment i.e., on 28.03.2021, she is not
holding the post of the Principal Advisor to the Chief
Minister. As such, in our view, it cannot be said that
respondent No.4 is under the control of the State
Government as on the date of the appointment as State
Election Commissioner.
62. The entire case of the petitioner is based on the
judgment of the Hon‟ble Apex Court in the case of State of
Goa & Another (1 supra). In the said case, the validity of
the Order dated 04.02.2020 issued by the Director of
Municipal Administration, Goa, in relation to reservation of
wards for 11 Municipal Councils within the State of Goa, fell
inter alia for consideration before the Hon'ble Supreme
Court of India. In the said case, on 03.11.2020, the
Hon'ble Governor of Goa appointed the Law Secretary of
the Government of Goa, a member of the IAS, as State
Election Commissioner, which duties were to be in addition
to his duties as Law Secretary. In that factual situation, the
Hon'ble Apex Court by its judgment dated 12.03.2021 held
that when the State Election Commissioner is none other
than the Law Secretary to the Government of Goa, the
whole process of the elections is faulted at the start as the
State Election Commissioner is not an independent body as
mandated by Article 243K, that the State Election
Commissioner has to be a person who is independent of the
State Government as he is an important constitutional
functionary who is to oversee the entire election process,
that giving an additional charge of such an important and
independent constitutional office to an officer, who is
directly under the control of the State Government, is a
mockery of the constitutional mandate, and all State
Election Commissioners appointed under Article 243K have
to be independent persons who cannot be occupying any
post or office under the Central or any State Government.
63. This Court after careful examination of the ruling of
the Apex Court came to a conclusion that the facts in the
present case and the facts in the case of State of Goa &
another (1 supra) are different. As such, this Court is
holding that the ratio laid down by the Hon‟ble Apex Court
in State of Goa & another (1 supra) is not applicable to
the case on hand.
64. In the considered opinion of this Court, the
contention of the petitioner that respondent No.4 cannot act
independently, on the ground that she worked as Chief
Secretary to the State on extension and Principal Advisor to
the Chief Minister has no substance in the absence of any
substantial material.
65. The matter can be looked from yet another angle. The
Hon‟ble Judges of the High Court will be appointed as per
the "Memorandum of procedure" prescribed for that
purpose. In the "Memorandum of Procedure for
appointment of High Court judges", there is a provision that
"the Chief Justice of the High Court may consider the name
of one Advocate suggested by the Chief Minister of the
State". The name of an Advocate, who is holding the post
of Advocate General, Public Prosecutor or Government
Pleader of the State Government is suggested by the Chief
Minister and it is considered by the Collegium of the High
Court headed by the Hon‟ble Chief Justice for appointment
as Judge of the High Court and the President of India
appoints the said Advocate as a Judge of the High Court.
Can any one say that the said Advocate, who is appointed
as a Judge, is under the influence of the Chief Minister or he
is not an independent person? Answer would be in negative.
66. Because, it has to be noted that though, the Chief
Minister suggested one name of the Advocate for
appointment as a Judge of the High court, the collegium of
the High Court headed by the Hon‟ble Chief Justice
recommends his name, only after considering his eligibility,
suitability, and integrity. In the same way, when the
Hon‟ble Governor appointed respondent No.4 as State
Election Commissioner after considering all aspects at his
own discretion under Article 243K of the Constitution of
India, the decision of the Hon‟ble Governor cannot be found
at fault.
67. It is further to be noted that except making bald
allegations against respondent No.4 that she would not act
fairly and independently in discharging her duties as State
Election Commissioner, there is no material placed before
the Court to substantiate this contention. The petitioner
also failed to make a case to substantiate or to establish
any arbitrariness or malafides in appointing the Respondent
No.4.
68. The Writ Petition filed by the petitioner for the relief
seeking a Writ of Mandamus and a Writ of Co-warranto on
relying the law declared by the Hon‟ble Apex Court in State
of Goa & another (1 supra). As already, we have
expressed our view that the ratio laid down by the Hon‟ble
Apex Court in the case of State of Goa & another
(1 supra) is not applicable to the facts of the case on hand.
As such, the relief sought by the petitioner in the present
Writ Petition fails, as the petitioner failed to plead and prove
the requirements for issue of Writ of Mandamus or Writ of
Co-Warranto.
69. In State of U.P. and Ors. v. Harish Chandra and
Ors.14" the Supreme Court held as follows:
"10. ...Under the Constitution a mandamus can be
issued by the court when the applicant establishes
that he has a legal right to the performance of
legal duty by the party against whom the
mandamus is sought and the said right was
subsisting on the date of the petition."
70. In Union of India v. S.B.Vohra 15 " the Supreme
Court considered the said issue and held that 'for issuing a
writ of mandamus in favour of a person, the person
claiming, must establish his legal right in himself. Then only
a writ of mandamus could be issued against a person, who
(1996) 9 SCC 309
(2004) 2 SCC 150
has a legal duty to perform, but has failed and/or neglected
to do so.
71. In view of the law declared by the Hon‟ble Apex Court
as stated above, it is for the petitioner to plead and prove
his legal right either statutory or constitutional is violated
by appointing Respondent No.4 as State Election
Commissioner. In the absence of establishing any violation
of the right of the petitioner, the petitioner is not entitled to
claim Writ of Mandamus. In our view, the petitioner could
not prove and plead the requirements for issuance of Writ
of Mandamus.
72. With regard to seeking of Co-Warranto, the petitioner
has to establish that respondent No.4 holding the post of
State Election Commissioner without legal authority or
respondent NO.4 is disqualified to hold the post. In this
aspect, it has to be considered that disqualification is of two
types i.e., (1) initially disqualified and (2) subsequently
disqualified. A person not legally entitled to hold a public
office even at the first instance if he is suffering with initial
disqualification. The subsequent disqualification could be
by the acts committed by the holder of such post by which
she would be disentitled from holding that post.
73. In the instant case, the petitioner failed to prove any
disqualification of respondent No.4 except making bald
statement that she is not an independent person and as
such, the petitioner is not entitled for issuance of Writ of
Co-Warranto as sought.
74. For the reasons stated in the above mentioned paras,
the petitioner failed to make out a case warranting
interference of this Court under Article 226 of the
Constitution of India to issue either Writ of Mandamus or
Writ of Co-Warranto and as such, this Writ Petition is liable
to be dismissed.
75. Accordingly, the Writ Petition is dismissed without
costs.
Miscellaneous petitions pending, if any, in this
case shall stand closed.
______________________
JUSTICE BATTU DEVANAND
Date : 07.10.2021
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THE HONOURABLE SRI JUSTICE BATTU DEVANAND
W.P.NO.9560 of 2021
Date : 07-10-2021
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