Surendran v. State of Kerala — 1998 DIGILAW 84 (KER)

Judgment :- C.S. Rajan, J. The petitioner challenges Ext. P-4 order dated 1-1-1998 passed by the first respondent by which the service of the third respondent who was to retire on 31-12-1997 was extended till 31-3-1998 as a special case. Accordingly, the fourth respondent passed Ext. P-5 order implementing Ext. P-3 order. The two grounds of attack against Exts. P-4 and P-5 are (1) that the above orders have been passed in flagrant violation of Exts. P-2 and P-3 instructions issued by the 6th respondent; and (2) that the extension of service granted to the third respondent is malafide because he is closely related to the fifth respondent. 2. Sri. K. Ramakumar, learned counsel for the petitioner submitted that the various instructions issued by the sixth respondent are intended to be obeyed by the first respondent and not to be violated. Therefore, according to the learned counsel, the present extension granted to the third respondent is in clear violation of the above instructions and is liable to be interfered with. 3. On the other hand, the learned Advocate General stressed that the present order granting extension of service to the third respondent will no way affect the directions given by the 6th respondent. First of all, the instructions only prohibit fresh appointments and not extension of an existing appointment. Moreover, a fresh appointment in the place of the third respondent would have an impact on the instructions issued by the 6th respondent. Therefore, the Government only thought that it is tit to grant an extension till 31.3.1998 because by the time the election process would be over. 4. Therefore, it has to be seen whether the 6th respondent while issuing such directions as can be seen from Exts. P-2 and P-3 is within its powers under Art.324 of the Constitution of India. The powers of the 6th respondent under Art.324 of the Constitution were subject matter of various decisions of the Supreme Court. The classic judgment on this topic is one rendered by Justice V.R. Krishna Iyer, in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi & Ors. (AIR 1978 SC 851). In the above judgment the Supreme Court analysed the various aspects of the matter and held that Art.324 operates in areas left unoccupied by legislation and the words "Superintendence, direction and control" as well as "conduct of all elections" are in the broadest terms. (AIR 1978 SC 851). In the above judgment the Supreme Court analysed the various aspects of the matter and held that Art.324 operates in areas left unoccupied by legislation and the words "Superintendence, direction and control" as well as "conduct of all elections" are in the broadest terms. Finally the Supreme Court was of the view that Art.324 is a plenary provision vesting the whole responsibility for National and State elections and therefore, has the necessary powers to discharge that function. Art.324 also has to be read in the light of the constitutional scheme and the Representation of the People Act. 5. The dictum in Mohinder Singh Gill's case (AIR 1978 SC 851) was again considered by the Supreme Court in the ruling reported in A.C. Jose v. Sivan Pillai & Ors. (1984 KLT 510). After considering the earlier cases of the Supreme Court the legal and constitutional position was summed up in the following words: "To sum up, therefore, the legal and constitutional position is as follows: (a) When there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections, (b) Where there is an Act and express Rules made there under, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the power of the Commission are meant to supplement rather than supplant the law (both statute and rules) in the matter of superintendence, direction and control as provided by Art.324, (c) Where the Act or the Rules are silent, the Commission has no doubt plenary powers under Art.324 to give any direction in respect of the conduct of election, and (d) Where a particular direction by the Commission is submitted to the Government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given." 6. The question again came up for consideration before the Supreme Court in the ruling reported in Kanhiya Lai Omar v. R.K. Trivedi & Ors. ((1985) 4 SCC 628). The question again came up for consideration before the Supreme Court in the ruling reported in Kanhiya Lai Omar v. R.K. Trivedi & Ors. ((1985) 4 SCC 628). The Supreme Court reiterated its earlier views in the following words: "The word 'election' in Art.324 is used in a wide sense so as to include the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process...." "While construing the expression "superintendence, direction and control" in Art.324(1), one has to remember that every norm which lays down a rule of conduct cannot possibly be elevated to the position of legislation or delegated legislation. There are some authorities or persons in certain grey areas who may be sources of rules of conduct and who at the same time cannot be equated to authorities or persons who can make law, in the strict sense in which it is understood in jurisprudence. A direction may mean an order issued to a particular individual or a precept which many may have to follow. It may be a specific or a general order. One has also to remember that the source of power in this case is the Constitution, the highest law of the land, which is the repository and source of all legal powers and any power granted by the Constitution for a specific purpose should be construed liberally so that the object for which the power is granted is effectively achieved. Viewed from this angle it cannot be said that any of the provisions of the Symbols Order suffers from want of authority on the part of the Commission, which has issued it". Again the Supreme Court considered the powers of the Election Commission under Art.324 of the Constitution in the ruling reported in Election Commission of India v. All India Anna D.M.K. (1994 Supp (2) SCC 689). In the above case, the Supreme Court was considering the legality of a direction of the Election Commission restricting the use of loudspeakers mounted on vehicles. The argument against the above direction was that there was no nexus between these restrictions imposed with a view to promoting public good with the objects and purposes of empowerment under Art.324 of the Constitution. Considering the above argument the Supreme Court observed as follows: 7. The argument against the above direction was that there was no nexus between these restrictions imposed with a view to promoting public good with the objects and purposes of empowerment under Art.324 of the Constitution. Considering the above argument the Supreme Court observed as follows: 7. On a consideration of the matter, we are, prima facie, of the view - and we abstain from making any final pronouncement one way or the other in view of the pendency of the writ petition - that though the specifications in the preamble of the grounds for the need and justification for the restrictions are stated in a manner susceptible to the contentions advanced for the respondents, the plenitude of those powers under Art.324 in the matter of conduct of fair and free elections, however, cannot put out of consideration the element of public inconvenience caused by the election campaigns. This, prima-facie is an area, perhaps of overlapping powers." 7. In a later ruling reported in Common Cause A Registered Society v. Union of India (AIR 1996 SC 3081) the Supreme Court considered the powers of Election Commissioner in directing the political parties to submit details of expenditure incurred or authorised by them in connection with the election of their respective candidates. In the above context the Supreme Court held as follows: "22. Superintendence and control over the conduct of election by the Election Commission include the scrutiny of all expenses incurred by a political party, a candidate or any other association or body of persons or by any individual in the course of the election. The expression "conduct of election" is wide enough to include in its sweep, the power to issue directions - in the process of the conduct of an election - to the effect that the political parties shall submit to the Election Commission for its scrutiny, the details of The expenditure incurred or authorised by the parties in connection with the election of their respective candidates." 8. In this connection it is advantageous to refer a decision of this Court on the same subject reported in Madhusoodhanan v. Chief Election Commission (1994 (2) KLT 867). In that case, the Election Commission directed the Government to cancel the appointment of the petitioner therein as Director General of Police and restore status quo ante on the ground that an election to one of the Assembly constituencies was notified. In that case, the Election Commission directed the Government to cancel the appointment of the petitioner therein as Director General of Police and restore status quo ante on the ground that an election to one of the Assembly constituencies was notified. The question which was decided in the above case was that whether the Election Commission was legally empowered to issue the direction to cancel the appointment of the petitioner therein by virtue of power under Art.324 of the Constitution or under S.13CC of the Representation of the People Act, 1950 or under S.28A of the Representation of the People Act, 1951. Under S.13 CC of the Representation of the People Act, 1950 the Chief Electoral Officers, District Election Officers etc are deemed to be on deputation with the Election Commission. Under S.28 A of the Representation of the People Act, 1951 the Returning Officer, Presiding Officer etc. are deemed to be on deputation to the Election Commission." The Election'Commission is empowered to appoint various officers for election duty, and for the successful completion of democratic process of adult franchise. By virtue of the deeming deputation of the officers mentioned above the Election Commission gets control over these officers. The superintendence, control and the discipline of the Election Commission will extend only to such officers who are deployed for the conduct of the election. The Election Commission cannot have any power, control or superintendence over the entire staff of the State. The Commission also cannot have any power, control or superintendence over an officer who was not designated for the purpose of election duty. The Election Commission in the above case contended that the Commission will have power, control and superintendence over the entire staff of the State. Dealing with the above contention this Court held as follows : The learned judge while holding so considered the Mohinder Singh Gill's case (AIR 1978 SC 85) and A.C. Jose's case (1984 KLT 510). 11. Counsel for the Election Commission contended that there is no parliamentary legislation or rule made in respect of control, superintendence and direction over the members of the staff deputed for election duty and, therefore, the Election Commission can pass orders regarding the transfer and posting of any officer who has got any connection with the conduct of election.1 am unable to accept this contention. Power of the Election Commission are clearly outlined under Art.324(6) read with S.13CC of the Representation of the People Act, 1950 and S.28 A of the Representation of the People Act, 1951. The power, superintendence and control could be exercised in respect of officers who are deputed for election work. Counsel for the Election Commission further contended that DG and IGP is an election related officer as he has got overall control over the entire police force of the State. Reliance was placed on annexure- R1 letter issued by the Election Commission. In Cl. 4(iv) of the letter it is only stated that the Superintendent of Police, Deputy Superintendents of Police and Assistant Superintendents of Police and other senior level police officers like S.H.O. who are entrusted with the task of maintenance of law and order are election related officers. There is nothing in evidence to show that the service of these officers were requested by the Election Commission under Art.324(6) of the Constitution. Further, there is nothing in evidence to show that the DG and IGP was designated by the State for the conduct of election. There is also nothing in evidence to show that the Governor of the State made available to the Election Commission the service of the DG and IGP for the conduct of the election. It is clear that the Election Commission had absolutely no control and superintendence over the DG and IGP and the impugned direction passed by the Election Commission was without jurisdiction." "13. In short, the position is that the petitioner, who is the DG And IGP of the State was not under the administrative control of the Chief Election Commission. The Commission did not request to avail the service of the petitioner under Art.324(6) of the Constitution. The power, superintendence and control of the Election Commission will extend over such officers, who are entrusted with the election duties or whose services have been requested and obtained under Art.324(6)of the Constitution. The Election Commission can issue direction regarding posting and transfer of officers who are deputed for election duty or officers who are deemed to be on deputation to the Election Commission by virtue of the powers exercised by the Commission under Art.324(6) of the Constitution read with S.13CC of the Representation of the People Act, 1950 and S.28A of the Representation of the People Act, 1951. Petitioner is not an officer coming under any of these categories. The Election Commission was not authorised to give any direction to the State Government regarding the posting or transfer of the petitioner. The direction given by the Election Commission regarding the posting of the petitioner is only to be quashed. I set aside the direction issued by the Chief Election Commission and allow the Original Petition." 9. In view of these categorical pronouncements of the Supreme Court and of this Court it must be found out whether the extension of service granted, to the third respondent will really offend Exts. P-2 and P- 3 instructions. The 6th respondent notified the election on 24.1.1998. The above notification was published in the gazette dated 28.1.1998. Ext. P2 is dated 29.12.1997. The ban on the new appointments as contained in Ext. P2 is as follows: "It has come to the notice of the Commission that in some of the S tales attempts are being made to recruit personnel in different departments, Public Sector Corporations and other Autonomous Organisations enclusively or substantially funded from the State Exchequer in some cases, there are complaints that these recruitments are made in a hurry. The Commission is particularly concerned that some States are trying to recruit large number of constables and Home-guards during the run up to the elections. There are apprehensions that such recruitments may be done with a very view to dispense favours to some individuals or groups of individuals. The Commission after taking into account all relevant factors, has decided that all Recruitment shall be out on hold till the 15th of March, 1998." Thus, it can be seen that the laudable object of this ban is not to encourage extending favouritism by the Government to some individuals or group of individuals while making large scale fresh recruitments. Ext. P-3 is dated 20-12-1997 by which the second respondent instructed the various departments and public sector undertakings that no new recruitment should be made and such recruitment should be kept in abeyance till 15-3-1998. The third respondent is the Managing Director of a public sector undertaking. He should have retired on superannuation on 31-12-1997. But the Government as per Ext. P-4 extended his service till 31-3-1998 as a special case. The third respondent is the Managing Director of a public sector undertaking. He should have retired on superannuation on 31-12-1997. But the Government as per Ext. P-4 extended his service till 31-3-1998 as a special case. I do not think that an extension of service of the third respondent will come under the purview of new recruitment as envisaged in Exts. P-2 and P-3. The learned Advocate General has rightly contended that if a new appointment was made to the post which was vacated by the third respondent on superannuation, that would have come within the mischief of Exts. P-2 and P-3. That is why the Government extended the services of the third respondent till 31-3-1998. By that time the whole election process would be over. Viewing Ext. P-4 in this angle I do not find that neither the first respondent nor the fourth respondent has acted against Exts. P-2 and P-3. 10. One more argument has to be considered which was also stressed by the learned counsel for the petitioner. In Ground B there is an allegation that a special favour was shown to the third respondent. It is only because he happens to be a close relative of the Hon'ble Chief Minister. The third respondent has tiled a counter affidavit. In the above counter affidavit it is stated that lie is a relative of the Chief Minister but not a close relative. The petitioner's further allegation in the Original Petition is that the third respondent was appointed as Managing Director of the Keltron Component Complex Ltd. in 1986. When the third respondent was first appointed, the fifth respondent was not the Chief Minister. The third respondent has also stated in his counter affidavit that extension of service in the service of the Keltron is not a new phenomenon. Extension of service had been granted to earlier incumbents who were holding the post of Managing Director, Therefore, there is nothing uncommon in the extension of service granted to the third respondent. Therefore, I do not find any substance in the allegation of malafides raised by the petitioner. Thus, the Original Petition fails and is dismissed.