Re-appointment of State Election Commissioner by removing age restrictions violates requality clause.

(Prayer in W.P.No.40026 of 2005: Petition filed under Article 226 of the Constitution of India praying for the issue of writ of Certiorari to call for the records relating to Tamil Nadu Act 15/2005 published in the Government Gazette No.222, Extraordinary dated 13.10.2005 and to quash the same and to strike down the words “shall be eligible for reappointment” found in Section 239(2)(b) of the Tamil Nadu Panchayats Act,1994.

Prayer in W.P.No.4323 of 2006: Petition filed under Article 226 of he Constitution of India praying for the issue of writ of Certiorari to call for the records on the file of the first respondent relating to G.O.Ms.No.170, Rural Department (C4) dated 31.12.2005 vide Notification No.11(2)/RUL/938(c)/2005 published in the Tamil Nadu Government Gazette Extraordinary, bearing No.275 dated 31.12.2005 and quash the same.)

A.P. Shah, C.J.

The Legislative Assembly of the State of Tamil Nadu passed the Tamil Nadu Panchayats (Second Amendment) Act, 2005 (Act 15 of 2005) amending the provision of Section 239 (2) (b) of the Tamil Nadu Panchayats Act, 1994. This Act received the assent of the Governor on 12th October, 2005, and was published in the Government Gazette on 13th October, 2005. Before we notice the amendment made in the 1994 Act, by the said Amending Act, it may be appropriate to notice the provision of Section 239(2)(b) as it stood before the amendment. Section 239(2)(b) provides that the State Election Commissioner shall hold Office for a term of two years, and shall be eligible for re-appointment for two successive terms. The first proviso to Section states that no person shall hold office of the State Election Commissioner for more than six years in the aggregate. The second proviso states that the person appointed as the State Election Commissioner shall retire from office, if he completes the age of sixty two years during the terms of his office. By Tamil Nadu Act 15 of 2005, the words “for two successive terms” and the provisos in clause (b) of sub-section (2) of Section 239 stood omitted and the amended section 239(2)(b) reads as follows: -

“(b) The T.N. State Election Commissioner shall hold Office for a term of two years and shall be eligible for re-appointment.”

In view of the amendment, it now turns out that the post of State Election Commissioner continues to be a tenure post i.e., for a period of two years. However, the incumbent shall be eligible for reappointment without any limit of terms. Further, in view of the retirement age of 62 having been deleted, a person of any age can be appointed to the post and reappointed without any age limit. The amending Act has been brought into force with effect from 13th July 2005. The third respondent was functioning as the State Election Commissioner at the time the amending Act came into force. He was first appointed on 15.2.2002 for a term of two years, and after the expiry of the said term, he was re-appointed. He attained the age of 62 on 02.01.2006. Now he has been appointed for the third term for two years with effect from 2nd January 2006 to 1st January 2008. The amended provision of Section 239(2)(b) as well as the order of re-appointment of the third respondent are being assailed in these petitions.

2. The main ground of attack is that in view of the amended Act, for the post of the State Election Commissioner, a retired civil servant of any age can be appointed and also he can be reappointed for any number of terms at the will of the State Government de hors his age. This would lead to a situation that if a State Government remains at office for successive terms which is possible in our democracy, the State Election Commissioner of its choice, who may act according to the whims and fancies of it, may be appointed and reappointed till it lasts and also for any number of terms. That would lead to complete erosion of the credibility of the office of the State Election Commission and the functions to be carried out by the State Election Comm