The Andhra Pradesh Government, knocked the door of Supreme Court against the order of the High Court which reinstated N Ramesh Kumar as the Election Commissioner of the State. The High Court of Andhra Pradesh has quashed the Ordinance dated 10th April, which brought about following amendments to the Andhra Pradesh Panchayati Raj Act,1994:
The Government of AP has however, submitted that it was necessary to bring changes for the purpose of ensuring transparency and efficiency in the functioning of the State Election Commission and to reduce excessive delay in conducting the local body elections.
As per the ruling of the High Court the state is not empowered to appoint an SEC under Articles 243K and 243ZA of the Constitution of India and such power related to appointment is vested with the Governor only, the state government has submitted that after having a bare perusal of the Constitutional scheme including 243K and 243ZA it is clear that the power of appointing the Chief Election Commissioner is necessarily to be exercised by the Governor upon aid and advice of the councils of Ministers and not otherwise.
The State Government in its report submitted that the observation of the High Court related to the tenure of the SEC being a fixed tenure, it cannot be curtailed is wrong and is liable to be set aside because Article 243K & 243ZA empower the State Legislature to provide for the conditions of service and tenure to the office of the SEC. it is further stated that the findings of the High Court that the legislation was retrospective in nature merely because it resulted in termination of the EC was unsustainable because according to State Bank’s Staff Union (Madra Circle) v. Union of India and ors. a Statute is not retrospective merely because it affects existing rights nor is it retrospective merely because a part of the requisite for its action is drawn from a time precursor to its passing.
The State on the ruling of HC that the power of appointment is vested with the Governor and not the State, it submitted that the previous SEC was appointed on the recommendation of the Government. If the finding of the HC is correct than the previous appointment should equally vitiated on that ground.
The state government stating the judgement to be contradictory submitted that “the power of appointment of the SEC is that of the Governor in his personal discretion and striking down the appointment of the new incumbent on that ground, the High Court has surprisingly directed the reinstatement of the previous SEC even though his appointment admittedly suffers from the same alleged vice.” The government also stated that no notice was served by the High Court to the Chief Minister and Governor, but however they were made party to the case.