Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
AJIT SINGH
Vs.
RESPONDENT:
CHIEF ELECTION COMMISSIONER OF INDIA & ORS.
DATE OF JUDGMENT26/09/1989
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
SHETTY, K.J. (J)
CITATION:
1989 AIR 2255 1989 SCR Supl. (1) 249
1989 SCC (4) 704 JT 1989 (3) 746
1989 SCALE (2)671
ACT:
Election Commission (Recruitment of Staff) Rules,
1974-Appointment of Private Secretary to Chief Election
Commissioner-Choice left to Chief Election
Commissioner--Whether valid and legal-Consultation with
U.P.S.C. not necessary after 1979 amendment to Rules.
HEADNOTE:
The appellant was working as Private Secretary to the
Deputy Election Commissioner until July .26, 1977 when the
Deputy Election Officer under he whom was working relin-
quished his charge.
One Tilak Raj who was working as Private Secretary to
Chief Election Commissioner was promoted as Under Secretary.
In order to fill the vacancy caused by his promotion, Re-
spondent No. 2 M.L. Sarad, was appointed to the said post
w.e.f. September 1,1979. The appellant made a representation
complaining that the said appointment was contrary to the
Election Commission {Recruitment of Staff) Rules, which was
rejected on the ground that he was not eligible for appoint-
ment to the said post. Thereupon, the appellant filed a Writ
Petition challenging the notification dated 23.10.79 ap-
pointing the said M.L. Sarad as Private Secretary. During
the pendency of the Writ Petition the Commission under due
intimation to the Court amended the 1974 Rules as a result
of which entry at serial No. 9 relating to the Post of P.S.
to Chief Election Commissioner was omitted. The appellant
was informed by the Commission that it had withdrawn the
Memo of October 26, 1979 wherein it was stated that the
appellant was not eligible for appointment to the post in
question. The Court took due notice of the amendment but
held that the Writ Petition survived since the appellant was
not considered for appointment to the post w.e.f. 1.9.79.
The appellant contended before the High Court that (i)
the entire exercise culminating in the amendment of the
Rules was mala fide; (ii) that the amendment conferred
arbitrary and unfettered power on the Chief Election Commis-
sioner to appoint any person as his Private Secretary; (iii)
that in case the appellant had been appointed to the post on
1.9.79, subsequent amendment of the Rules would not have
operated
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
250
retrospectively to his detriment and he would have contin-
ued.
The High Court came to the conclusion that the 1979
Rules were not mala fide nor were they arbitrary and that
since the memo of 26.10.79 was withdrawn, the appellant was
entitled to be considered for appointment to the post in
question w.e.f. 1.9.79. Accordingly the High Court directed
the class II Departmental Promotion Committee to consider
the case of the appellant to the post in question w.e.f.
1.9.79. It further ordered that if the appellant is selected
for appointment to the said post, his appointment will be
deemed to have been made on ad hoc basis from 1.9.79 to
December 14, 1979 after which 1979 Rules came into opera-
tion. Monetary benefits were also directed to be paid to the
appellant.
The appellant being dissatisfied with the aforesaid
order preferred Letters Patent Appeal which was summarily
rejected on 24.7.80. The appellant has, therefore, appealed
to this Court after obtaining Special Leave.
Dismissing the appeal, this Court,
HELD: Article 324 confers the power of superintendence,
direction and control of elections in the Chief Election
Commissioner. Free and fair elections are the basic postu-
lates of any democratic system. A duty is cast on the Chief
Election Commissioner to ensure free and fair elections.
This makes the post of Chief Election Commissioner a sensi-
tive one. The Chief Election Commissioner has to deal with
several matters which are brought before him by political
parties as well as the Government. His office is called upon
to handle correspondence which require a high degree of
secrecy and confidentiality. He would naturally require the
services of his Private Secretary for handling such secret
and confidential files and correspondence. Integrity, hones-
ty and competence are the basic hallmarks for the said post.
In addition, he must be a person in whom the Chief Election
Commissioner has absolute trust and faith. It is for this
reason that the tenure of the post is made co-terminus with
the tenure of the Chief Election Commissioner. That is for
the obvious reason that a man chosen by the predecessor may
not be enjoying the same degree of confidence of his succes-
sor. He may like to have his own man of confidence to attend
to his secretarial work. It is, therefore, not without
reason that the choice of personnel to the post of Private
Secretary is left to the Chief Election Commissioner him-
self. [255E-G]
Since consultation with the U.P.S.C. was not necessary after
the
251
amendment introduction by the 1979 Rules, the Chief Election
Commissioner was entitled to choose the man of his confi-
dence as Private Secretary. The choice of Respondent No. 2
to the post cannot, therefore, be questioned. [256C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2653 of
1980.
From the Judgment and Order dated 24.7.1980 of the Delhi
High Court in L.P.A. No. 113 of 1980.
V.M. Tarkunde, A.B. Lal and V.N. Ganpule for the Appellant.
T.S.K. Iyer and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by
AHMADI, J. The appellant Ajit Singh was appointed as
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
Grade II Stenographer on February 2, 1953 and was promoted
to the post of Senior Personal Assistant w.e.f. April 1,
1970. On January 4, 1974 he was further promoted to the post
of Private Secretary to the Deputy Election Commissioner in
which capacity he worked till July 26, 1977 when the Deputy
Election Commissioner under whom he was working relinquished
charge of office.
The first respondent is the Chief Election Commissioner.
One Tilak Raj was the Private Secretary to the first re-
spondent. On the said Tilak Raj being promoted as Under
Secretary, the post of Private Secretary to the Chief Elec-
tion Commissioner fell vacant and it was not filled in
forthwith. However, by an order dated October 23, 1979
respondent No. 2 M.L. Sarad was appointed to the same post
w.e.f. September 1, 1979. On learning about the appointment
of respondent No. 2 to the said post the appellant com-
plained that the said appointment was contrary to the Elec-
tion Commission (Recruitment of Staff) Rules, 1974 (herein-
after called ’the 1974 Rules’). The appellant’s representa-
tion was rejected on the ground that he was not eligible for
appointment to the post in question.
The appellant then filed a Civil Writ Petition No. 1583
of 1979 in the High Court of Delhi challenging the notifica-
tion dated October 23, 1979 appointing M.L. Sarad to offici-
ate as Private Secretary to the Chief Election Commissioner
w.e.f. September 1, 1979 as well as the Memorandum dated
October 26, 1979 informing him that he was
252
eligible for appointment to the said post. During the pend-
ency of this writ petition it was disclosed to the Court
that the Commission proposed to make suitable changes in the
1974 Rules insofar as appointment to the post of Private
Secretary to the Chief Election Commissioner was concerned.
The leave of the Court was sought to amend the 1974 Rules.
It was also disclosed that the Commission proposed to with-
draw the order of October 23, 1979 appointing M.L. Sarad as
Private Secretary to the Chief Election Commissioner. The
Court granted leave to the Commission to amend the 1974
Rules. By the notification dated December 3, 1979 earlier
notification of October 23, 1979 appointing M.L. Sarad as
officiating Private Secretary to the Chief Election Commis-
sioner was withdrawn. The 1974 Rules were amended by notifi-
cation dated December 10, 1979 by the President in exercise
of the power conferred by the proviso to Article 309 of, the
Constitution of India. By the said amendment entry at serial
No. 9 relating to the post of the Private Secretary to Chief
Election Commissioner and the entries relating thereto came
to be omitted. The respondent No. 1 brought these two
changes to the Court’s notice by an application dated Decem-
ber 21, 1979. Thereupon, the appellant sought leave to amend
the memo of his writ petition. The Commission also informed
the appellant by its communication dated January 17, 1980
that it had withdrawn its earlier memorandum of October 26,
1979 whereby it was stated that the appellant was not eligi-
ble for appointment to the said post. The Court took notice
of these facts but thought that the writ petition survived,
since the appellant was not considered for appointment to
the post in question w.e.f. September 1, 1979. Besides the
appellant also challenged the Election Commission (Recruit-
ment of Staff) Amendment Rules, 1979 (hereinafter called
’the 1979 Rules’) by which entry at serial No. 9 came to be
omitted. The contention of the appellant was that the entire
exercise culminating in the amendment of 1974 Rues was mala
fide and was undertaken with the sole purpose of depriving
him of appointment to the said post. It may here be men-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
tioned that after the 1979 Rules came into force respondent
No. 2 was re-appointed to the same post by notification
dated February 27, 1980 w.e.f. the previous day. It was
contended that the 1979 Rules had the effect of conferring
an absolute discretion on the Chief Election Commissioner to
appoint any person of his choice to the post in question. To
put it differently the appellant contended that the amend-
ment conferred arbitrary and unfettered power on the Chief
Election Commissioner to appoint any person he deemed fit as
his Private Secretary regardless of his qualification. It
was further contended before us by the learned counsel for
the appellant that if the appellant had been appointed to
the post in question on September 1,
253
1979 the subsequent amendment of the Rules would not have
operated retrospectively to his detriment and he would have
continued as Private Secretary even after the amendment.
A learned Single Judge of the High Court came to the
conclusion that the 1979 Rules were not mala fide nor were
they arbitrary as alleged by the appellant. The High Court
also came to the conclusion that since the memorandum of
October 26, 1979 was withdrawn the appellant was entitled to
be considered for appointment to the post of Private Secre-
tary w.e.f. September 1, 1979. The High Court, therefore,
directed Class II Departmental Promotion Committee to con-
sider the case of the appellant for appointment to the post
of Private Secretary to the Chief Election Commissioner
w.e.f. September 1, 1979. It ordered that if the appellant
is selected for appointment by promotion to the said post
his appointment will be deemed to have been made on ad-hoc
basis from September 1, 1979 to December 14, 1979 after
which the 1979 Rules came into force. Monetary benefits due
to the appellant on such appointment were ordered to be
calculated and paid. The appellant feeling aggrieved by this
order preferred an appeal, L.P.A. No. 113 of 1980, before a
Division Bench of the same High Court. This Letters Patent
Appeal was summarily dismissed on July 24, 1980. Feeling
aggrieved by the said order the petitioner approached this
Court and secured special leave under Article 136 of the
Constitution.
Mr. Tarkunde, the learned counsel for the appellant,
reiterated the same contentions which were convassed before
the learned Single Judge of the High Court and added that if
the appellant was appointed w.e.f. September 1, 1979, the
subsequent amendment of the Rules would not have stood in
his way and he would have continued as Private Secretary to
the Chief Election Commissioner even after the amendment of
the said Rules. He, therefore, contended that the High Court
was not right in limiting the relief in regard to the appel-
lant’s appointment upto December 14, 1979 i.e. till the 1979
Rules came into force. It may at this stage be pointed out
that pursuant to the order of the High Court directing the
Class II Departmental Promotion Committee to consider the
case of the appellant for appointment to the post of Private
Secretary w.e.f. September 1, 1979, the said Committee met
on May 9, 1980 and considered the case of all eligible
persons for appointment to the post in question w.e.f.
September 1, 1979. The Departmental Promotion Committee did
not find anyone suitable for appointment tO the said post.
Intimation in that behalf was given to the appellant by the
memorandum of May 14, 1980. This decision of the
254
Departmental Promotion Committee sets at rest the argument
that the appellant would have continued as Private Secretary
had he been appointed to the said post w.e.f. September 1,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
1979.
Mr. Tarkunde, the learned counsel for the appellant,
rightly did not seriously contend before us that the 1979
Rules were mala fide and were made solely with a view to
deny appointment to the appellant as Private Secretary to
the Chief Election Commissioner. It must be realised that in
reply to the proposal to amend the extent rules the Ministry
of Law, Justice and Company Affairs, in consultation with
the Department of Personnel and Administrative Reforms,
wrote to the Commission on December 5, 1974 as under.
"The post of Private Secretary to the Chief
Election Commissioner is borne on the personal
staff of the Chief Election Commissioner and
appointment thereto is outside the purview of
the U.P.S.C. vide entry 5 of Schedule to the
Union Public Service Commission (Exemption
from consultation) Regulations 1958. The
appointment of a person thereto may be made by
the Chief Election Commissioner at his discre-
tion without the consultation of the Union
Public Service Commission. The appointment to
the post of Private Secretary to the Chief
Election Commissioner is also co-terminus with
the appointment of Chief Election Commission-
er. In view of this position, the Department
of Personnel and Administrative Reforms have
advised that the Recruitment Rules for the
post of Private Secretary to the Chief Elec-
tion Commissioner need not be made. The Rules
for the post as proposed by the Commission
have therefore not been notified."
After the amendment of the 1974 Rules the Commission issued
an office order dated February 18, 1980 stating that ap-
pointment to the post of Private Secretary shall be made ’in
the absolute discretion of the Chief Election Commissioner’
from amongst persons of suitable class or category serving
in the Commission or from outside, as he may deem fit. The
words ’in the absolute discretion of the Chief Election
Commissioner’ were construed by counsel to mean that arbi-
trary and unfettered power was conferred to the Chief Elec-
tion Commissioner in the matter of choice of his Private
Secretary. The office order further stated that the appoint-
ment of the incumbent to the said post ’shall be co-terminus
with the incumbency in the post of the Chief Election Com-
missioner’. This order shows that after the amendment of the
255
1974 Rules the matter in regard to the choice of personnel
for the post of Private Secretary to the Chief Election
Commissioner was left to the sole discretion of the Chief
Election Commissioner.
It will appear from the above developments that the
proposal for the amendment of the relevant recruitment Rules
was moved way back in July 1970. The advice given by the Law
Ministry by their communication of December 5, 1974 was
ultimately accepted by the Commission. By the letter of
March 19, 1975, the Law Ministry, however, informed the
Commission that the Commission’s proposal would be consid-
ered at the time if change in the incumbency in the post of
the Chief Election Commissioner. That was why the process of
amendment of the 1974 Rules was delayed until December 1979.
The incumbent to the post of Chief Election Commissioner at
all material times had, therefore, nothing to do with the
proposal to amend the recruitment rules. It was, therefore,
impossible to contend that respondent No. 1’s action was
mala fide and was actuated with the sole desire to deny
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
promotion to the appellant to the post of Private Secretary
to the Chief Election Commissioner.
Coming to the next limb of attack it must be realised
that in a democratic republic like ours the office of the
Chief Election Commissioner is of vital importance. Article
324 confers the power of superintendence, direction and
control of elections in the Chief Election Commissioner.
Free and fair elections are the basic postulates of any
democratic order. A duty is cast on the Chief Election
Commissioner to ensure free and fair elections. This makes
the post of the Chief Election Commissioner a sensitive one.
The Chief Election Commissioner has to deal with several
matters which are brought before him by political parties as
well as the Government. His office is called upon to handle
correspondence which require a high degree of secrecy and
confidentiality. He would naturally require the services of
his Private Secretary for handling such highly secret and
confidential files and correspondence. It is, therefore,
imperative that the person working as Private Secretary to
the Chief Election Commissioner must be one in whom implicit
faith and confidence can be placed. He must be a man of
impeccable character and integrity, besides being competent
in secretarial work. Integrity, honesty and competence are
the basic hallmarks for the post. In addition, he must be a
person in whom the Chief Election Commissioner has absolute
trust and faith. It is for this reason that the tenure of
the post is made co-terminus with the tenure of the Chief
Election Commissioner. That is for the obvious reason that a
man chosen by the predecessor may not be enjoying the
256
same degree of confidence of his successor. He may like to
have his own man of confidence to attend of his secretarial
work. It is, therefore, not without reason that the choice
of personnel to the post of Private Secretary is left to the
Chief Election Commissioner himself. This is nothing new.
Similar provision is made for certain other functionaries as
can be seen from the Home Department’s Notification dated
1st September, 1958 as amended from time to time. We are,
therefore, of the opinion that having regard to the special
needs of the post it was imperative to leave the matter of
choice of personnel in the absolute discretion of the Chief
Election Commissioner. We, therefore, do not think that the
office order of February 18, 1980 can be struck down. The
High Court was, therefore, right in limiting the relief upto
December 14, 1979 i.e. till the 1974 Rules became effective.
Since consultation with the U.P.S.C. was not necessary after
the amendment introduced by the 1979 Rules, the Chief Elec-
tion Commissioner was entitled to choose the man of his
confidence as Private Secretary. The choice of respondent
No. 2 to the post cannot, therefore, be questioned.
In view of the above, we do not see any merit in the
contentions urged before us by the learned counsel for the
appellant. We, therefore, dismiss this appeal but in the
facts and circumstances of the case leave the parties to
bear their own costs.
Y. Lal Appeal
dismissed.
257