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PETITIONER: AJIT SINGH

       Vs.

RESPONDENT: CHIEF ELECTION COMMISSIONER OF INDIA & ORS.

DATE OF JUDGMENT26/09/1989

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SHETTY, K.J. (J)

CITATION:  1989 AIR 2255            1989 SCR  Supl. (1) 249  1989 SCC  (4) 704        JT 1989 (3)   746  1989 SCALE  (2)671

ACT:     Election   Commission  (Recruitment  of  Staff)   Rules, 1974-Appointment  of  Private Secretary  to  Chief  Election Commissioner-Choice      left     to     Chief      Election Commissioner--Whether  valid  and  legal-Consultation   with U.P.S.C. not necessary after 1979 amendment to Rules.

HEADNOTE:     The  appellant was working as Private Secretary  to  the Deputy  Election Commissioner until July .26, 1977 when  the Deputy  Election  Officer under he whom was  working  relin- quished his charge.     One  Tilak Raj who was working as Private  Secretary  to Chief Election Commissioner was promoted as Under Secretary. In  order to fill the vacancy caused by his  promotion,  Re- spondent  No. 2 M.L. Sarad, was appointed to the  said  post w.e.f. September 1,1979. The appellant made a representation complaining  that the said appointment was contrary  to  the Election Commission {Recruitment of Staff) Rules, which  was rejected on the ground that he was not eligible for appoint- ment to the said post. Thereupon, the appellant filed a Writ Petition  challenging  the notification dated  23.10.79  ap- pointing  the said M.L. Sarad as Private  Secretary.  During the  pendency of the Writ Petition the Commission under  due intimation  to the Court amended the 1974 Rules as a  result of which entry at serial No. 9 relating to the Post of  P.S. to  Chief Election Commissioner was omitted.  The  appellant was  informed  by the Commission that it had  withdrawn  the Memo  of  October 26, 1979 wherein it was  stated  that  the appellant  was not eligible for appointment to the  post  in question.  The  Court took due notice of the  amendment  but held that the Writ Petition survived since the appellant was not considered for appointment to the post w.e.f. 1.9.79.     The  appellant contended before the High Court that  (i) the  entire  exercise culminating in the  amendment  of  the Rules  was  mala  fide; (ii) that  the  amendment  conferred arbitrary and unfettered power on the Chief Election Commis- sioner to appoint any person as his Private Secretary; (iii) that in case the appellant had been appointed to the post on 1.9.79,  subsequent  amendment of the Rules would  not  have operated

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250 retrospectively  to his detriment and he would have  contin- ued.     The  High  Court came to the conclusion  that  the  1979 Rules  were not mala fide nor were they arbitrary  and  that since the memo of 26.10.79 was withdrawn, the appellant  was entitled  to  be considered for appointment to the  post  in question w.e.f. 1.9.79. Accordingly the High Court  directed the  class II Departmental Promotion Committee  to  consider the  case  of the appellant to the post in  question  w.e.f. 1.9.79. It further ordered that if the appellant is selected for  appointment to the said post, his appointment  will  be deemed  to  have been made on ad hoc basis  from  1.9.79  to December  14, 1979 after which 1979 Rules came  into  opera- tion. Monetary benefits were also directed to be paid to the appellant.     The  appellant  being dissatisfied  with  the  aforesaid order  preferred Letters Patent Appeal which  was  summarily rejected on 24.7.80. The appellant has, therefore,  appealed to this Court after obtaining Special Leave. Dismissing the appeal, this Court,     HELD: Article 324 confers the power of  superintendence, direction  and  control of elections in the  Chief  Election Commissioner.  Free and fair elections are the basic  postu- lates of any democratic system. A duty is cast on the  Chief Election  Commissioner  to ensure free and  fair  elections. This makes the post of Chief Election Commissioner a  sensi- tive  one. The Chief Election Commissioner has to deal  with several  matters which are brought before 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  secret and confidential files and correspondence. Integrity, hones- ty and competence are the basic hallmarks for the said 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 same degree of confidence of his succes- sor. He may like to have his own man of confidence to attend to  his  secretarial  work. It is,  therefore,  not  without reason  that the choice of personnel to the post of  Private Secretary  is left to the Chief Election  Commissioner  him- self. [255E-G] Since consultation with the U.P.S.C. was not necessary after the 251 amendment introduction by the 1979 Rules, the Chief Election Commissioner  was entitled to choose the man of  his  confi- dence  as Private Secretary. The choice of Respondent No.  2 to the post cannot, therefore, be questioned. [256C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2653  of 1980.     From the Judgment and Order dated 24.7.1980 of the Delhi High Court in L.P.A. No. 113 of 1980. V.M. Tarkunde, A.B. Lal and V.N. Ganpule for the Appellant. T.S.K. Iyer and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by     AHMADI,  J.  The appellant Ajit Singh was  appointed  as

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Grade  II Stenographer on February 2, 1953 and was  promoted to  the  post of 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  re- spondent.  On  the said Tilak Raj being  promoted  as  Under Secretary, the post of Private Secretary to the Chief  Elec- tion  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. September 1, 1979. On learning about the  appointment of  respondent  No. 2 to the said post  the  appellant  com- plained that the said appointment was contrary to the  Elec- tion Commission (Recruitment of Staff) Rules, 1974  (herein- after called ’the 1974 Rules’). The appellant’s  representa- tion was rejected on the ground that he was not eligible for appointment to the post in question.     The appellant then filed a Civil Writ Petition No.  1583 of 1979 in the High Court of Delhi challenging the notifica- tion dated October 23, 1979 appointing M.L. Sarad to offici- ate 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 252 eligible for appointment to the said post. During the  pend- ency  of  this writ petition it was disclosed to  the  Court that the Commission proposed to make suitable changes in the 1974  Rules  insofar as appointment to the post  of  Private Secretary to the Chief Election Commissioner was  concerned. The  leave of the Court was sought to amend the 1974  Rules. It was also disclosed that the Commission proposed to  with- draw 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 Private Secretary to the Chief Election  Commis- sioner was withdrawn. The 1974 Rules were amended by notifi- cation 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 Commissioner and the entries relating thereto  came to  be  omitted.  The respondent No.  1  brought  these  two changes to the Court’s notice by an application dated Decem- ber 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 eligi- ble for appointment to the said post. The Court took  notice of these facts but 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 Commission  (Recruit- ment  of  Staff) Amendment Rules, 1979  (hereinafter  called ’the 1979 Rules’) by which entry at serial No. 9 came to  be omitted. The contention of the appellant was that the entire exercise culminating 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  men-

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tioned 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 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  amend- ment  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 appellant had been  appointed  to the post in question on September 1, 253 1979  the subsequent amendment of the Rules would  not  have operated retrospectively to his detriment and he would  have continued as Private Secretary even after the amendment.     A  learned  Single Judge of the High Court came  to  the conclusion  that the 1979 Rules were not mala 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  Secre- tary  w.e.f. September 1, 1979. The High  Court,  therefore, 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 1, 1979. It ordered that 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  preferred an appeal, L.P.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 Article 136  of  the Constitution.     Mr.  Tarkunde,  the learned counsel for  the  appellant, 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 amendment  of the said Rules. He, therefore, contended that the High Court was not right in limiting the relief in regard to the appel- lant’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 Committee to  consider  the case of the appellant for appointment to the post 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 the appellant by  the memorandum of May 14, 1980. This decision of the 254 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,

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1979.     Mr.  Tarkunde,  the learned counsel for  the  appellant, rightly  did not seriously contend before us that  the  1979 Rules  were  mala fide and 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 Commissioner is borne on the personal               staff  of the Chief Election 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   consultation)  Regulations  1958.   The               appointment of a person thereto may be made by               the Chief Election Commissioner at his discre-               tion  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  Commission-               er.  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  Elec-               tion 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  ap- pointment 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 deem fit.  The words  ’in  the absolute discretion of  the  Chief  Election Commissioner’  were construed by counsel to mean that  arbi- trary and unfettered power was conferred to the Chief  Elec- tion  Commissioner  in the matter of choice of  his  Private Secretary. The office order further stated that the appoint- ment of the incumbent to the said post ’shall be co-terminus with  the incumbency in the post of the Chief Election  Com- missioner’. This order shows that after the amendment of the 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 communication of December  5,  1974  was ultimately  accepted  by the Commission. By  the  letter  of March  19,  1975, the Law Ministry,  however,  informed  the Commission  that the Commission’s proposal would be  consid- ered at the time if change in the incumbency in the post  of the Chief Election Commissioner. That was why the process of amendment of the 1974 Rules was delayed until December 1979. The incumbent to the post of Chief Election Commissioner  at all  material times had, therefore, nothing to do  with  the proposal to amend the recruitment rules. It was,  therefore, impossible  to  contend that respondent No. 1’s  action  was mala  fide  and was actuated with the sole  desire  to  deny

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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 Commissioner is of vital importance.  Article 324  confers  the power of  superintendence,  direction  and control  of  elections in the Chief  Election  Commissioner. Free  and  fair elections are the basic  postulates  of  any democratic  order.  A  duty is cast on  the  Chief  Election Commissioner  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 before 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  competent 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 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, therefore, 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 functionaries 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, therefore, 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 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  Elec- tion  Commissioner  was entitled to choose the  man  of  his confidence  as Private Secretary. The choice  of  respondent No. 2 to the post cannot, therefore, 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,  therefore, dismiss this appeal but  in  the facts  and  circumstances of the case leave the  parties  to bear their own costs. Y.    Lal                                             Appeal dismissed. 257