The judgment establishes the legal principle that the powers of the Election Commission under Art.324 of the Constitution and the Representation of the People Act are broad and must be interpreted in the context of conducting fair and free elections.

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. 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 C