Vijayawada: A 2007 judgment of the Allahabad High Court in the Aparmita Prasad Singh versus the State of Uttar Pradesh case has gained utmost relevance in the ongoing dispute over the Y S Jagan Mohan Reddy government appointing a new State Election Commissioner (SEC) after issuing an ordinance to curtail the incumbent’s tenure.
Governor Biswabhushan Harichandan, who promulgated the ordinance, paving way for the new SEC to take charge, the YSRC government, which was keen to get rid of the SEC, N Ramesh Kumar, as well as Yogesh Thandava, an advocate of the Andhra Pradesh High Court and petitioner in the Public Interest Litigation (PIL) against the government’s move are all relying on the same judgment pronounced by a two member division bench.
But what the state government’s legal team seems to have missed out is that while the two judges differed on all important factors relating to the case, they took a unanimous decision to decide the case in favour of the Uttar Pradesh government.
Ironically, the government is building its case on observations made by one judge, while the petitioner is relying on observations of the second judge, which are both in complete contrast with each other.
Aparmita Prasad Singh was appointed by the then CM Rajnath Singh-led BJP government on December 5, 2001, for a period of five years. When his term was about to end in December 2006, the then chief minister Mayawati amended the rules to increase the term of the SEC to seven years.
However, her successor, Mulayam Singh Yadav amended the rules yet again to bring down the tenure to five years, and consequently, appointed a new SEC. Prasad Singh challenged the Mulayam government’s decision in the High Court.
According to sources in the Raj Bhavan, Governor Harihandan was fully convinced about the legality of the ordinance and his power to promulgate it.
There is a crucial clause, 243K, in the Constitution of India, which says “conditions of service cannot be varied to the disadvantage of the SEC after his appointment”.
The Governor, and state Advocate-General S Sriram are said to be of the view that the Allahabad HC judgment categorically said that “prescription of tenure of office is not a condition of service”.
The government further argues that the same judgment also made it clear that “once a disqualification is incurred” (due to change in tenure), there is an automatic cessation from holding office.
Yogesh, in his affidavit, referred to the same judgment, obviously, reflecting the observations of the second judge, who said, “in case the State Legislature is permitted to treat the State Election Commissioner like an ordinary government servant and provisions contained in Article 243K of the Constitution is interpreted in manner of statutes covering the service conditions of government servants, then it shall defeat the very purpose of the Constitutional provisions.”
Giving a ruling that tenure of service was a part of service conditions, the Judge said the State Election Commission shall not be able to discharge its constitutional obligations in case the tenure of service is not secured or protected.
The SEC shall not be able to discharge duty keeping in view the constitutional spirit to hold free and fair election in the state.
The judge further said that the amendment of reducing tenure is ultra vires to the Constitution.
The judge, however, agreed to dismiss the case on technical grounds that the incumbent SEC was not made a party to the case....