S. Malaichamy vs Lt. Governor And Ors.
2002 Latest Caselaw 253 Del

JUDGMENT

Devinder Gupta, J.

1. Writ petition No. 7859 of 2001 by S. Malaichamy, a serving IAS Officer, who was already holding the post of Managing Director, Delhi Khadi and Village Industries Board, was given the additional charge of the Election commissioner for the National Capital Territory of Delhi till further order, in terms of Notification (Annexure P1) dated 12.1.2001, primarily is to challenge the order (Annexure P5) dated 13.12.2001 issued by the Lt. Governor by which Shri M.P. Tyagi, a retired IAS Officer has been appointed as the Election Commissioner for Delhi simultaneous therewith the assignment of the petitioner to hold additional charge of Election Commissioner, has been brought to an and. The prayers made in the writ petition filed under Article 226 of the Constitution of India a re:

"(a) a writ of certiorari or any other appropriate write quashing the aforesaid notification issued by the respondent No. 3 by order and in the name of Lt. Governor, respondent No. 1 and the removal of the petitioner from the Office of the Election Commissioner of N.C.T. of Delhi, which is patently violative of Section 7(1) of Delhi Municipal Corporation Act and Article 243k read with Article 243ZA of the Constitution of India.

(b) a writ of mandamus or any other appropriate writ or order or direction directing the respondent Nos. 1 to 4 not to implement or enforce the aforesaid two notifications dated 13th December, 2001 and 3rd December, 2001 and not to remove the petitioner from the post of Election Commissioner and not to ask him to hand over the charge of the Office of the Election Commissioner and also directing the said respondent Nos. 1 to 4 not to allow the respondent No. 5 to take the Charge of the Office of the Election Commissioner in the Office of the Election Commission of NCT of Delhi.

(c) a writ of prohibition prohibiting and restraining the respondent Nos. 1 to 4 from acting upon the aforesaid two notifications dated 13th December, 2001 and 3rd December, 2001 to the detriment and disadvantage of the petitioner adversely affecting his 3 years terms of office as Election Commissioner.

(d) an appropriate writ of order direction holding the Office of the Election Commissioner in the office of the Election Office of NCT of Delhi and that the appointment of respondent No. 5 as Election Commissioner in the Election Commission of NCT of Delhi is wholly illegal, void and non-est.

(e) any other appropriate writ, order or direction which this Hon'ble Court deems just, fit and proper in the facts and circumstances of the case."

2. The connected Writ Petition No. 7692 of 2001 is another similar petition filed as PIL by Shri Jai Kishan, a former MLA and General Secretary of one of the political parties raising the same issues.

3. Primarily, the contention of Mr. L.R. Gupta, learned Senior Advocate, appearing for S. Malaichamy is that the appointment of Election Commissioner for Delhi is governed by the Delhi Municipal Corporation Act, 1957 (Act No. 66 of 1957) (hereinafter called "the DMC Act") and the Election Commissioner of NCT of Delhi (Condition of Service and Tenure of Office) Rules, 1973 (hereinafter called "the Rules"), which prescribe three years tenure and the same statutory provisions stipulate against removal other than in the manner prescribed for removal of a Judge of the High Court. Therefore, according to Mr. L.R. Gupta, once S. Malaichamy was found fit to hold the additional charge of Election Commissioner and was directed to hold such charge with the approval of the Lt. Governor, who is Competent Authority under the Act and thereafter not only statutory notification (Annexure P1) specifically citing Section 7 of the D.M.C. Act was issued but was fully acted upon in numerous manners and occasions to the knowledge and direct dealings of all including the Lt. Governor himself, as such the appointment even though by way of additional charge and till further orders should be read down in the manner that the additional nature of the charge and the indefinite nature of the duration (which was "till further orders") should stand substituted by the position mandated under Section 7 of the D.M.C. Act and the Rules viz. appointment for three years and no removal except in the manner applicable to a Judge of the High Court.

4. Reliance has also been placed on Rule 4 of the Rules, which prescribes that the Election Commissioner shall hold the office for three years or till he attains the age of 65 years, whichever is earlier and on Rule 6(1), which lays down that immediately upon assuming the office as an Election Commissioner, a serving officer shall be deemed to have retired from service on the date he enters upon the office of Election Commissioner.

5. By amendment of the Election Commissioner of NCT of Delhi(Conditions of Service and Tenure of Office) (Amendment) Rules, 2001 (Annexure P4), Rule 6(1) of the Rules has been amended and new Rule 10 has been added. The petitioners are challenging these amendments as being ultra vires of Section 7 of the D.M.C. Act and the constitutional mandate contained in Article 243K read with Article 243ZK of the Constitution of India.

6. Mr. Mukul Rohtagi, learned Additional Solicitor General appearing for the Government of N.C.T. of Delhi, has candidly stated that the said assignment of additional charge as Election Commissioner for National Capital Territory of Delhi to S. Malaichamy till further orders is really in the nature of a mistake inasmuch as the assignment was made without taking into account complete statutory requirements of Section 7 of the D.M.C. Act.

7. Mr. Naresh Kaushik, learned Counsel appearing on behalf of respondent No. 5, adopted the submissions of Mr. Mukul Rohtagi, learned Additional Solicitor General.

8. Briefly put, the submission on behalf of the respondents is that the conferment of additional charge of Shri S. Malaichamy and that too for a limited period viz., "till further orders, is not an appointment of a regular nature or in the Substantive capacity to the post of the Election Commissioner and, therefore, taking away the said additional charge does not amount to "removal" and consequently there was not requirement to follow the procedure applicable to the removal of a High Court Judge.

9. The alternative contention of respondents is that an additional charge itself pre-supposes that Mr. S. Malaichamy will continue to perform the duties of Managing Director of Khadi and Village Industries Board and as such was neither an appointment under Section 7 of the D.M.C. Act, nor under the Rules, as latter clearly stipulated that the appointee to the office of Election Commissioner, if he be a serving officer shall automatically be deemed to have retired from service under the Government whereas in the present case the intention as well as practical manifestation was that S. Malaichamy continued in the service of the Government as Managing Director of Khadi and Village Industries Board.

10. Mr. Rohtagi has stressed the fact that the appointment order being not only for additional charge and till further orders, but was also without remuneration, which itself indicated that the remuneration would be continued to be received by S. Malaichamy for his substantive post of Managing Director of Khadi and Village Industries Board.

11. Mr. Rohtagi has also emphasised the aspect that S. Malaichamy by his own conduct also had continued to perform the duties of Managing Director of Khadi and Village Industries Board on normal basis throughout the tenure and, therefore, was precluded from claiming any direction, which might have the effect of his continuing as an Election Commissioner.

12. Our attention was also drawn to the fact that prior to Shri S. Malaichamy, there were two other serving IAS Officers, Ms. Neeru Nanda and Ms. Adarsh who had also held the additional charge as Election Commissioner prior to Shri S. Malaichamy while continuing to hold their substantive posts and it was suggested that this type of current duty charge by way of interim arrangement was being resorted to earlier also on more than one occasion and, therefore, the action taken in relation to Shri S. Malaichamy was uniform with the earlier practice and as such is not liable to be interfered with as being allegedly out of mala fide disposition in relation to Shri S. Malaichamy on account of his allegedly not agreeing not agreeing to freeze the rotation of seats.

13. We also heard Mr. Lala Ram Gupta, learned Senior Advocate, by way of rebuttal to the contentions of Mr. Rohtagi.

14. At the outset, we must mention that Mr. Lala Ram Gupta, learned Senior Advocate for S. Malaichamy very fairly did not press the point of mala fides, upon our query, as to how the same could be maintained in the absence of specific allegations and particulars.

15. In the absence of challenge on the ground of mala fides, the matter is to be consider in a very limited compass as to whether an assignment of additional charge until further orders, being contrary to the letter and spirit of Section 7 of the D.M.C. Act and to the constitutional provisions as contained in Parts IX and IXA of the Constitution of India and also contrary to the unamended Rules, as were applicable at that time, can be "read down" to be deemed to be a substantive appointment as an Election Commissioner for a period of three years (which is the tenure prescribed under the Rules).

16. There can be dispute that the independence of the office of the Election Commissioner is of paramount importance deserves the highest consideration. Therefore, the grievance of the petitioners in the two writ petitions that S. Malaichamy has been removed just prior to the holding of forthcoming elections to the Municipal Corporation of Delhi allegedly on account of his expressing inability to freeze the seat rotational system (allegedly affecting some sitting members) deserves serious consideration. We have been taken through the provisions of the Constitution and the D.M.C. Act and we find that both in Parts and IXA of the Constitution as well as Section 7 of the D.M.C. Act, there is a clear legislative mandate in favor of having security of tenure of an Election Commissioner and for prohibition against his removal in any manner other than that which is prescribed for the removal of a Judge of the High Court.

17. We are also conscious that similar provision exists in the case of Chief Election Commissioner Under Article 324 of the Constitution of India, except that the removal in the said case, is in the manner applicable to a Judge of the Hon'ble Supreme Court of India.

18. Much as we are conscious of the necessity of having valid, proper and well considered appointment to be made to all posts and more so to such an office of Election Commissioner, having a crucial role to play in relation to Municipal Elections in the context of the devolution of powers and functions to the local self- Government, as envisaged by the constitutional mandate, which are contained in Parts IX and IXA of the Constitution of India, at the same time we are equally conscious of the limitations and constraints of our powers and jurisdiction under Article 226 of the Constitution of India.

19. We, however, do find it amiss that the appointment to the office of Election Commissioner, which is in the nature of a Statutory appointment and which is governed by statutory and constitutional provisions, should have been processed in such a cavalier fashion. In fact, Mr. Rohtagi, learned Additional Solicitor General was candid enough to accept that there was an element of cavaliar approach or at least disregard of statutory provisions at the time of making the said assignment of additional charge upon Shri S. Malaichamy.

20. We have gone through the record. Annexure P1 to the counter at page 62 of the record is a copy of noting portion of the file and is proposal for transfer of I.A.S. Officers. It is clear from the nothings that in the process of simultaneous posting and conferment of charge upon about a dozen senior level Administrative Officers, the additional charge of Election Commissioner was proposed to be given to S. Malaichamy. It was cleared by the Chief Minister and was concurred by the Lt. Governor. It appears from the record that till stage there was no consideration of the provisions of Section 7 of the D.M.C. Act or the statutory rules or the constitutional provisions. In fact it appears that alongside substantive assignments, some cases of additional charge were processed to look after the work of unmanned posts/offices.

21. On 8.1.2001, as mentioned above, the Lt. Governor gave his approval to the proposal of assigning additional charge of Election Commissioner to Shri S. Malaichamy in addition to his continuing to hold the post of Managing Director of Delhi Khadi and Village Industries Board. Thereafter on 12.1.2001 in the administrative hierarchy it was noted on the file that a notification would have to be issued in the Extraordinary Gazette on the appointment of Shri S. Malaichamy as the Election Commissioner of N.C.T. of Delhi. At that stage, the file was put up only at the level of Chief Secretary and the notification (Annexure P1) was issued only with the approval of the Chief Secretary without the file being put up to the Lt. Governor, who alone is the authority under Section 7 of the D.M.C. Act, who has to pass the order of appointment of Election Commissioner. Infact, it was submission by Mr. Rohtagi that the notification not having the concurrence of Lt. Governor, as such the appointment itself was invalid on that account as well.

22. However, on the basis of the view, which we propose to take in the matter, we have not gone into this aspect nor considered whether the Business Rules permits the Chief Secretary to act on behalf of the Lt. Governor in such matters or not.

23. After considering the totality of the pleadings of the parties and the submissions of learned Counsel appearing on both sides, we do not find that the respondents failed to act in accordance with the statutory provisions in relation to the appointment to the Office Election Commissioner for National Capital Territory of Delhi. Conferment of additional charge of Election Commissioner and that also till further orders and without any remuneration was contrary to the letter and spirit of Section 7 of the D.M.C. Act and also to the requirements of independence of the office of an Election Commissioner having key role in the context of the amended constitutional provisions, as contained in Part IX and IXA of the Constitution of India governing local self-Governments.

24. Parts IX and IXA of the Constitution of India were made part of Constitution by the Constitution (Seventy Third Amendment) Act, 1992 as regards Local Bodies like the Panchayats and the Municipalities. Article 243K is a provision on the conduct of elections to the Panchayats and envisage that the superintendence direction and control of the preparation of electoral rolls, for and the conduct of, all election to the Panchayats shall be vested in a State Election Commission to be appointed by the Governor. The conditions of service and tenure of office of the State Election Commissioner Shall be such as the Governor may by rule determine. It also provided that the State Election Commissioner shall not be removed from the office except in like manner and on like ground as a Judge of a High Court. Similar provision is made with respect to The Municipalities by Article 243ZA as regards elections and for appointment of Election Commissioner.

25. Under Article 243ZA provisions of Part IXA of the Constitution apply to the Union Territories and their application to a Union Territory have effect as if references to the Governor of State were references to the Union Territory.

26. Section 7 of the D.M.C. Act in the like manner provide that the superintendence, direction and control of the preparation of electoral rolls for and the conduct of all election to the Corporation shall be vested in the Election Commission of the National Capital Territory of Delhi consisting of an Election Commissioner to be appointed by the Administrator. Tenure has to be such, as may be determined by the rules made by the Administrator. Election Commissioner once appointed cannot be removed except in a manner and on like grounds as a Judge of High Court, Section 7 of the D.M.C. Act reads as under:

"7. Elections to the Corporation.--(1) The superintendence. direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Corporation shall be in the Election Commission of the National Capital Territory of Delhi consisting of an Election Commissioner to be appointed by the Administrator.

(2) Subject to the provisions of any law made by the Legislative Assembly of the National Capital Territory of Delhi, the conditions of service and tenure of office of the Election Commissioner shall be such as the Administrator may by rules determine:

Provided that the Election Commissioner shall not be removed from office except in a like manner and on the like ground as a Judge of High Court and the conditions of service of the Election Commissioner shall not be varied to the disadvantage after his appointment.

(3) The Administrator shall, when so requested by the Election Commission make available to that Commission such staff which the Administrator considers necessary for discharge of the functions conferred on the Election Commission by Sub-section (1)."

27. We may also quote Rules 4 and 6 of the Election Commissioner of N.C.T. of Delhi (Conditions of Service and Tenure of Office), Rules read as under :

"4. The Election Commissioner shall hold office for a term or three years from the date on which he assumes his office or attains the age of 65 years whichever is earlier :

Provided the Election Commissioner may, at any time, by writing under his hand addressed to the Administrator, resign his office.

x x x x

6(1). A person who immediately before the date of assuming office as the Election Commissioner was in service, shall be deemed to have retired from service the date on which he enters upon office as the Election Commissioner but his subsequent service as the Election Commissioner shall be reckoned as continuing approved service counting fro person in service to which he belonged.

(2) Where an Election Commissioner demits office (whether in any manner specified in Section 4 or by resignation); he shall, on such demission, be entitled to:

(a) a pension which is equal to the pension payable to Secretary to the Government.

(b) such pension including commutation of pension, family pension and gratuity as are admissible to a Secretary to a Government.

(3)Except where the Election Commissioner demits office by resignation, he shall be deemed, for the purpose of these rules, to have demitted his office if, and only if,--

(a) he has completed the term of office specified in Section 4, or

(b)he has attained the age of sixty five years, or

(c) he is removed from office in a like manner and on the like grounds as a Judge of High Court."

28. Reading of the aforementioned provisions contained in Parts IX and IXA of the Constitution of India and Section 7 of the D.M.C. Act would suggest that the power to appoint Election Commissioner vests exclusively in the Administrator. Tenure of office of the Election Commissioner has also be such as the Administrator may by rules determine. Rule 4 says that the Election Commissioner shall hold office for a term of three years from the date on which he assumes the office or attains the age of 65 years, whichever is earlier. In case a person has to be appointed as an Election Commissioner, there has to be conscious decision taken by the Administrator in doing so by reference to various provisions. The power conferred on Administrator by virtue of Section 7 of the D.M.C. Act cannot be delegated or exercised by any other authority. When a question would arise for consideration as to whether a person has or has not been appointed to the office of the Election Commissioner or that whether his appointment is a valid appointment, as contemplated by the Statute, reference necessarily will have to be made to the manner in which appointment took place. Assignment of an additional charge by any stretch of imagination amount to appointment to the office of Election Commissioner. It was submitted on behalf of the petitioner that the approval of the proposal to transfer, posting and assignment of charge has to be read in the light of notification (Annexure P1) and this Court is entitled to read down in the notification initial appointment of the petitioner, as contemplated by Section 7 of the D.M.C. Act and in consonance with rules not for unlimited period but for a period as contemplated in the Rules and must be declared so by this Court in exercise of its writ jurisdiction.

29. We have given our considered thought to this submission but are of the view that we cannot in exercise of our writ jurisdiction under Article 226 of the Constitution on India transgress into the domain of the Executive by issuing a direction as prayed for declaring the assignment of the additional charge to Shri S. Malaichamy as substantive appointment as Election Commissioner for the tenure of three years and/or prescribing salary and emoluments and other terms and conditions of service, when we have noticed that in the file such appointment was neither envisaged nor made. It also did not have the concurrence of the Lt. Governor. We have, therefore, to stop at the stage of returning a finding that the exercise of power in the form of conferment of additional charge upon Shri S. Malaichamy by order dated 12.1.2001 and by making the same applicable till further orders with a stipulation for no remuneration and thereby making it implicit that the incumbent will continue to perform his duties as a Managing Director of KVIB and draw emoluments and perform duties of the said post, was certainly cavaliar action and in disregard of the statutory provisions governing such appointment. We are also of the view that when no proposal had been put up before the Lt. Governor (Administrator) in consonance with Section 7 of the D.M.C. Act for appointment of an Election Commissioner and it was only a proposal of assigning additional charge, the executive office ought not to have and could not have processed and carried out the assignment of additional charge to Shri S. Malaichamy as of such additional charge or its non-continuance pursuant to the substantive appointment of Shri Tyagi as Election Commissioner, cannot amount to "removal" of the kind as contemplated buy Section 7 of the D.M.C. Act or the constitutional provisions or the Rules and as such it is not open to the petitioner to contend that the procedure for removal of a High Court Judge ought to have been adopted in his case.

30. There is another aspect also which to our mind is crucial, namely, the conduct. Shri S. Malaichamy did not agitate the aspect of assignment of the additional charge till further orders, as given to him by Annexure P1. He accepted the same and has now come forward by filing this petition only when the appointment of Shri Tyagi was made and also when his own service as an officer in the IAS has reached the verge of superannuation. This fact coupled with the fact that Shri S. Malaichamy continued to discharge his duties and draw remuneration as the Managing Director of Khadi and Village Industries Board additionally. This goes to show that he himself considered it to be an additional charge of Election Commissioner and not an appointment to the office of Election Commissioner. He is thus, by conduct, precluded from claiming a right to get his tenure converted into a full three years appointment on substantive basis as an Election Commissioner for National Capital Territory of Delhi with effect from 12.1.2001

31. An argument had been put forward to the effect challenging certain amendments to the rules, which took place as amounting to take away the protection of Rules 5,6 and 7, in the case of serving officers and leaving them to be governed by their own rules as regards conditions of service, including a grievance against the inclusion of Rule 10. Since no prayer was made to quash the said amended rules and futhermore a decision on the same is not required on account of the view we have taken in the matter and considering that Shri M.P. Tyagi, respondent No. 5 is not a serving officer, we do not propose to decide this point. Yet we feel it incumbent upon us to observe that to stipulate that the service officers will continue to be governed by their own terms and conditions as regards posting etc., while making statutory appointment to an office such as that of Election Commissioner, is an anathema to the requirements of independence, security of tenure and other considerations, which are paramount to the proper functioning of such an authority. We are sure that the respondents will be appropriately conscious of the requirement of having proper and well-formulated rules, which are necessary for ensuring the independence, security of tenure and other terms, which are part

and parcel of the office of an Election Commissioner under the applicable statutory provisions.

32. In the light of the above and as we have held that Shri S. Malaichamy is not entitled to the grant of any direction in his favor, which might have the effect of converting the additional charge till further orders, as was assigned to him, into a substantive appointment to the office of Election commissioner with a tenure of three years and/or for incorporation of terms and conditions including remuneration, which were neither contemplated in the order dated 8.1.2001 nor is there in the notification dated 12.1.2001, we dismiss the writ petition with the observations as detailed above.

33. The connected, PIL (C.W.No. 7692/2001) has also to fail accordingly and is dismissed for the same reasons.

Parties to bear their respective costs.