Ajit Singh v. Chief Election Commissioner of India & Ors.

AHMADI, J. The appellant Ajit Singh was appointed as Grade II Stenographer on February 2, 1953 and was promoted to the post of D 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 respondent. On the said Tilak Raj being promoted as Under Secretary, the post of Private Sec­ retary to the Chief Election 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. F September 1, 1979. On learning about the appointment of respondent No. 2 to the said post the appellant complained that the said appoint­ ment was contrary to the Election Commission (Recruitment of Staff) Rules, 1974 (hereinafter called 'the 1974 Rules'). The appellant's rep­ resentation was rejected on the ground that he was not eligible for appointment to the post in question. G The appellant then filed a Civil Writ Petition No. 1583 of 1979 in the High Court of Delhi challenging the notification dated October 23, 1979 appointing M.L. Sarad to officiate 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 H A eligible for appointment to the said post. During the pendency of this writ petition it was disclosed to the Court that the Commission pro­ posed to make suitable changes in the 1974 Rules insofar as appoint­ ment to the post of Private Secretary to the Chief Election Commis­ sioner was concerned. The leave of the Court was sought to amend the 1974 Rules. It was also disclosed that the Commission proposed to B withdraw 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of October 23, 1979 appointing M.L. Sarad as officiating Privat~ Secretary to the Chief Election Commissioner was withdrawn. The 1974 Rules were C amended by notification 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 Commis­ sioner and the entries relating thereto came to be omitted. The respon­ dent No. 1 brought these two changes to the Court's notice by an II> application dated December 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 eligible for appointment to the said post. The Court took notice of these facts but IE 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 Commis­ sion (Recruitment of Staff) Amendment Rules, 1979 (hereinafter cal­ led 'the 1979 Rules') by which entry at serial No. 9 came to be omitted. The contention of the appelllant was that the entire exercise culminat- 11 ing 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 mentioned 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 G 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 amendment 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 J-l appellant had been appointed to the post in question on September 1, ' AJIT SINGH v. CHIEF ELECTION COMMR. [AHMADI, J .] 253 1979 the subsequent amendment of the Rules would not have operated retrospectively to his detriment and he would have continued as Pri­ vate Secretary even after the amendment. A learned Single Judge of the High Court came to the conclusion that the 1979 Rules were not ma/a 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 Secretary w.e.f. September 1, 1979. The High Court, there­ fore; 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 l, 1979. It ordered ihat 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 D preferred an appeal, LP.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 Arti- cle 136 of the Constitution. ML Tarkunde, the learned counsel for the appelant, 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 F amendment of the said Rules. He, therefore, contended that the High Court was not right in limiting the relief in regard to the appellant'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 Com­ mittee to consider the case of the appellant for appointment to the post G 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 tl;le · appellant bv the memorandum of May 14, 1%0. This decision_of the H A 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, 1979. Mr. Tarkunde, the learned counsel for the appellant, rightly did not seriously contend before us that the 1979 Rules were mala fide and B 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 Com­ missioner is borne on the personal staff of the Chief Elec­ tion 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 con­ sultation) Regulations 1958. The appointment of a person thereto may be made by the Chief Election Commissioner at his discretion 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 Commissioner. 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 Election 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 appointment 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 G deem fit. The words 'in the absolute discretion of the Chief Election Commissioner' were construed by counsel to mean that arbitrary and unfettered power was conferred to the Chief Election Commissioner in the matter of choice of his Private Secretary. The office order further stated that the appointment of the incumbent to the said post 'shall be co-terminus with the incumbency in the post of the Chief Election H Commissioner'. This order shows that after the amendment of the AJJT SINGH v. CHIEF ELECTION COMMR. [AHMADI, J.] 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 communi­ cation of December 5, 1974 was ultimately accepted by the Commis­ sion. By the letter of March 19, 1975, the Law Ministry, however, informed the Commission that the Commission's proposal would be considered at the time of change in the incumbency in the post of the Chief Election Commissioner. That was why the process of amend­ ment of the 1974 Rules was delayed until December 1979. The incum­ bent to the post of Chief Election Commissioner at all material times had, therefore, nothing to do with the proposal to amend the recruit­ ment rules. It was, therefore, impossible to contend that respondent No. l's action was ma/a fide and was actuated with the sole desire to deny 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 Commis­ sioner is of vital 'importance. Article 324 confers the power of superintendence, direction and control of elections in the Chief Elec­ tion Commissioner. Free an.ct fair elections are the basic postulates of any democratic order. A duty is cast on the Chief Election Commis­ sioner 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 be­ fore 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 compe­ tent 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 SUPREME COURT REPORTS l1989] Supp. 1 S.C.R. A 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, there­ fore, 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 func- B tionaries 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, there­ fore, 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 q: 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 Election Commis­ . sioner was entitled to choose the man of his confidence as Private Secretary. The choice of respodent No. 2 to the post cannot, there- D fore, 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, there­ fore, dismiss this appeal but in the facts and circumstances of the case leave the parties to bear their own costs. E Y.Lal Appeal dismissed.