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PETITIONER: S.S. DHANOA

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT24/07/1991

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. KANIA, M.H.

CITATION:  1991 AIR 1745            1991 SCR  (3) 159  1991 SCC  (3) 567        JT 1991 (3)   290  1991 SCALE  (2)205

ACT:     Constitution  of  India,  1950:  Article  324.  Election Commission-President’s Notification--Determination of number and  appointment of Election Commissioners--Rules  providing tenure  of  5  years  or  upto  superannuation  age  of   65 years--Subsequent  notification by President --Abolition  of the  post  of Election Commissioners--  Whether  mala  fide, whether affects independence of Election Commission--Materi- al     loss    to    incumbents--Whether     exigency     of employment--Flashing of photo graphs of Election Commission- ers while announcing their removal on T V deprecated.     Election  Commission--Salient features  and  composition of-Appointment    of   Chief   Election   Commissioner    is obligatory--Appointment  of other Election Commissioners  is not obligatory--Commission’s work should warrant appointment of  other  Election  Commissioners-Distinction  in   service conditions and tenure of the Chief Election Commissioner and other  Election Commissioners--What is--Chief Election  Com- missioner whether primus inter partes--Need for laying  down the  procedure  for  transacting the  business  of  Election Commission emphasised.

HEADNOTE:     Article  324(2) of the Constitution empowers the  Presi- dent to fix and appoint such number of Election  Commission- ers as he may from time to time determine. By a notification dated  7.10.1989 the President fixed the number of  Election Commissioners   at  two.  By  another   notification   dated 16.10.89, the President appointed the petitioner and another person as Election Commissioners. Simultaneously, the Presi- dent also promulgated the rules regulating the conditions of service and tenure of the Election Commissioners under which an  Election Commissioner was to hold office for a  term  of five years or until he attained the age of 65 years whichev- er was earlier.     However, on 1st January, 1990, the President issued  two notifications rescinding the earlier two notifications dated 7.10.89  and 16.10.89. Consequently, the two posts of  Elec- tion Commissioners were abolished and the appointment of the petitioner  and the other Election Commissioner came  to  an end.

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159 160     The  petitioner  filed  a writ petition  in  this  Court challenging  the  legality of the  notifications  dated  1st January,  1990 contending that: (a) the Election  Commission being  an  independent body, the abolition of the  posts  of Election Commissioners and their consequent removal tampered with the independence of the Election Commission directly or indirectly;  (b)  in view of the service rules made  by  the President  the Election Commissioners were entitled to  con- tinue in office for full tenure of five years or until  they attained the age of 65 years whichever was earlier; (c)  the notification  abolishing  the  two posts  and  removing  the petitioner  and the other Election Commissioner were  issued mala fide under the advice of the Chief Election Commission- er;  (d) Petitioner’s removal affected him  materially;  and (e)  the flashing of the photographs of the  petitioner  and other  Election Commissioner while announcing their  removal on  the television during a news bulletin subjected them  to severe loss of dignity and reputation.’ Dismissing the petition, this Court,     HELD:  1.  The Election Commission as envisaged  by  the Constitution is an independent institution and has to  func- tion  as such. In the discharge of its duties and  functions it  is  not amenable to the control of any other  body.  The salient features of the composition of the Election  Commis- sion  as given in Article 324 are that the Commission  shall always  consist  of a permanent incumbent,  viz.  the  Chief Election Commissioner. But the President has also been given the  power to appoint such number of other Election  Commis- sioners  as  he may, from time to time, fix. While  the  ap- pointment of the Chief Election Commissioner is a must,  the appointment  of the other Election Commissioner  or  Commis- sioners  is  not obligatory. The number  of  other  Election Commissioners  is  left to the discretion of  the  President depending upon the need felt from time to time. [169A-B-C]     1.1 However, in the matter of the conditions of  service and  tenure of office of the Election Commissioners, a  dis- tinction is made between the Chief Election Commissioner  on the one hand and Election Commissioners and Regional Commis- sioners on the other. Whereas the conditions of service  and tenure of office of all are to be such as the President may, by rule determine, a protection is given to the Chief  Elec- tion  Commissioner in that his conditions of  service  shall not be varied to his disadvantage after his appointment, and he  shall  not  be removed from his office  except  in  like manner  and  on the like grounds as a judge of  the  Supreme Court.  These  protections are not available either  to  the Election  Commissioners  or to the  Regional  Commissioners. Their conditions 161 of  service can be varied even to their  disadvantage  after their appointment and they can be removed on the recommenda- tion of the Chief Election Commissioner, although not other- wise.  Thus  in  these two respects not  only  the  Election Commissioners are not on par with the Chief Election Commis- sioner,  but they are also placed on par with  the  Regional Commissioners although the former constitute the  Commission and  the latter do not and are only appointed to assist  the Commission. [169H, 170A-B-C]     Article  324(4) though spells out the  relationship  be- tween  Election Commission and Regional  Commissioners  does not  help  to throw light on the  relationship  between  the Chief Election Commissioner and Election Commissioners inter se.  The  fact  that the Regional Commissioners  are  to  be

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appointed  by the President in consultation with the  Commis on to asist the Commission to perform its functions,  though places the Election Commissioners on a higher pedestal  than the Regional Commissioners does not raise them to the status of  the  Chief  Election Commissioner.  The  Chief  Election Commissioner does not, therefore, appear to be primus  inter partes,  i.e. first among the equals, but is intended to  be placed in a distinctly higher position. Therefore, it cannot be held that the Election Commissioners have the same powers and the authority as the Chief Election Commissioner, and it may  well  be that the Chief Election Commissioner  has  the power  to disregard and override the views of  the  Election Commissioners  the abolition of their posts therefore  least infringed  on  the independence of  the  Commission.  [175B, 174H, 175A, 170E, 180B]     1.2 The petitioner and the other Election  Commissioners were  appointed  when  the work of the  Commission  did  not warrant  their appointment. It is evident from  record  that the  then  Government  had thought it fit to  make  the  two appointments although there was no need to do so. What other considerations  weighed with the then Government  in  making the  appointment is anybody’s guess, and the Court does  not propose  to go into them. However, it was expected that  the Union  of India would candidly admit the initial mistake  of making  the  said appointments rather than  defend  them  on non-existent  grounds.  Not only there was no need  for  the said appointments, but also the appointments in the  absence of  the  definition of their roles in  the  Commission  were creating an untoward and unworkable situation rendering  the Commission internally torn and ineffectual in its  function- ing. Thus the manner of appointment of the Election  Commis- sioners and the attitude adopted by them in the discharge of their  functions  was hardly calculated to ensure  free  and independent  functioning  of the Commission, much  less  its smooth working. [175E, 179C-D, E, 178C] 162     1.2. In view of the fact that there was no need for  the posts of the Election Commissioners at the time the appoint- ments  were made and that in the absence of a clear  defini- tion  of their role in the Commission, particularly,  vis-a- vis  the Chief Election Commissioner, the appointments  were an  oddity, the abolition of the posts far from striking  at the  independence  of the Commission paved the way  for  its smooth and effective functioning. [179H, 180A]     2. The instant case is not a case of a premature  termi- nation  of service. It is a clear case of the  abolition  of posts  and the termination of the service is  a  consequence thereof.  Hence  the termination of service is not  open  to challenge on the ground of any illegality. [180D-E]     3.  The  allegations  of mala fides  against  the  Chief Election Commissioner are hard to accept. The removal of the Election Commissioners was not on the recommendations of the Chief Election Commissioner under the 2nd proviso to  clause (5)  of the Article 324. Nothing has been brought on  record to show that even otherwise the Government while  abolishing the posts had acted on the suggestion of the Chief  Election Commissioner.  On  the other hand, the  records  shows  that although there were bickerings even on petty issues, all the decisions were taken ultimately unanimously. It is, however, another  thing that this unison in working, in  the  circum- stances,  could  not have been guaranteed for  all  time  to come, and the Government if they desired the continuance  of the  two  Commissioners had an option to make the  rules  of business.  That  the Government chose one  rather  than  the other option is no ground to allege mala fides against  them

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and  much  less  against the  Chief  Election  Commissioner. [181B; 180F-H, 181A]     4.  Material  loss on account of cutting  short  of  the tenure is not unknown in a service career and is one of  the exigencies of employment. The creation and abolition of post is the prerogative of the executive, and in the present case of the President. Article 324(2) leaves it to the  President to fix and appoint such number of Election Commissioners  as he may from time to time determine. The power to create  the posts  is  unfettered.  So also is the power  to  reduce  or abolish  them.  If, therefore, the President,  finding  that there was no work for the Election Commissioners or that the Election  Commission could not function, decided to  abolish the  posts, that was an exigency of the office held  by  the petitioner. [181C-D]     5. The flashing of the photographs of the petitioner and the other Election Commissioner in the news bulletin by  the Doordarshan was 163 clearly uncalled for. Although there is nothing on record to show  at  whose instance it was done, yet the  act  deserves condemnation  in the strongest language. It was  within  the powers of the Government to investigate the incident and  it could  have  offered to investigate the event  and  to  make proper  amends  to  the petitioner and  the  other  Election Commissioner. Instead it has casually dismissed the incident by  a mechanical denial of it. The attitude adopted  by  the Government towards the erstwhile public servants is strongly disapproved. [182E-F-G-H, 183A]     6. It appears that there is an impression in some  quar- ters that if the Government admits its mistake whether it is committed by the same Government or the earlier  Government, it loses its face. Nothing can be farther from reality. In a democratic regime, the Government represents the people.  It adds  to its respectability and credibility, if the  Govern- ment also owns its mistakes frankly. [179D-E]     7. In the absence of rules to the contrary, the  members of a multi-member body are not and need not always be on par with each other in the matter of their rights, authority and powers. [174C]     7.1  It is an acknowledged rule of transacting  business in  a multimember body that when there is no express  provi- sion  to  the contrary, the business has to  be  carried  on unanimously.  The rule to the contrary such as the  decision by  majority, has to be laid down specifically  by  spelling out the kind of majority--whether simple special of all  the members or of the members present and voting etc. [174E]     7.2  In a case such as that of the  Election  Commission which  is not merely an advisory body but an executive  one, it  is  difficult to carry on its affairs  by  insisting  on unanimous  decisions in all matters. No procedure  has  been laid down for transacting the business when Election Commis- sioners  are appointed. Hence, a realistic approach  demands that either the procedure for transacting business is  spelt out by a statute or a rule either prior to or simultaneously with  the appointment of the Election Commissioners or  that no  appointment  of Election Commissioners is  made  in  the absence of such procedure. [174F-G]      8.  There  is no doubt that two heads are  better  than one, and particularly when an institution like the  Election Commission  is entrusted with vital functions, and is  armed with  exclusive uncontrolled power to execute them, ’it’  is both  necessary and desirable that the powers are not  exer- cised  by  one individual, however, all-wise he may  be.  It iII-conforms  the tenets of the democratic rule. It is  true

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that the inde- 164 pendence of an institution depends upon the persons who  man it  and not on their number. A single individual  may  some- times prove capable of withstanding all the pulls and  pres- sures,  which  many may not. However, when vast  powers  are exercised by an institution which is accountable to none, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than  one man  an institution, their role have to be clearly  defined, if  the functioning of the institution is not to come  to  a naught. [178E-G]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (C) No. 235 of 1990. (Under Article 32 of the Constitution of india).     Gopal  Subramanium, Ms. Binu Tamta and S. Murlidhar  for the Petitioner.     Altar Ahmad, Additional Solicitor General, Ms. A. Subha- shini,  K. Swami, C.S. Vaidyanathan and S.R. Setia  for  the Respondents. The Judgment of the Court was delivered by     SAWANT,  J.  On  7th October, 1989,  by  a  notification issued in exercise of the powers conferred by clause (2)  of Article 324 of the Constitution, the President fixed,  until further orders, the number of Election Commissioners  (other than  the Chief Election Commissioner), at two. By a  subse- quent  notification of 16th October, 1989 issued  under  the same provisions, the President appointed the petitioner  and one  Shri V.S. Seigell as Election Commissioners w.e.f.  the afternoon of that day. On the same day, by another notifica- tion  issued in exercise of the powers conferred  by  clause (5)  of Article 324 of the Constitution, the President  made rules  to regulate the conditions of service and  tenure  of office  of the Election Commissioners (other than the  Chief Election  Commissioner). These conditions laid  down,  among other  things,  that  an Election  Commissioner  shall  hold office for a term of five years or until he attains the  age of 65 years whichever happens earlier.     2.  On  1st  january, 1990, in exercise  of  the  powers conferred  under  Article 324(2) of  the  Constitution,  the President  issued  two  notifications-one  rescinding,  with immediate  effect,  the notification of  7th  October,  1989 creating the two posts of Election Commissioners 165  and another rescinding, with immediate effect, the  notifi- cation of 16th    October, 1989 by which the appointment  of the  petitioner  and Shri    V.S. Seigell was  made.  It  is these  two notifications of ist January, 1990     which  are being assailed in the present petition.       3. The grounds of attack are, firstly, once appointed, an  Election Commissioner continues in office for  his  full tenure determined by the rules made under Article 324(5)  of the Constitution which is five years or till the  attainment of 65 years of age whichever is earlier. The President could remove  the  petitioner only on the  recommendation  of  the Chief  Election Commissioner. He had otherwise no  power  to cut short the tenure either under the Constitution or  under the rules. Hence, the rescission of the notifications of 7th and 16th October, 1989 by the impugned notifications of  1st January,  1990  is illegal. Secondly, it is urged  that  the

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Election Commission is an independent body and its independ- ence  is vital to free and fair elections which are  a  sine qua non for democracy. Any interference with the working  of the Election Commission, directly or indirectly is bound  to have adverse, effect on the health of our democracy.  Hence, it is of paramount importance to the democracy enshrined  in our Constitution that its independence is not eroded in  any manner. The device adopted in the present case, viz., of the rescission of the notification creating the posts and there- by abolishing the poets and thus removing the petitioner and the other Election Commissioner was an attempt to remove the Election  Commissioners which removal could not be  effected otherwise either under the Constitution or under the service rules.  The third attack is that the two notifications  were issued  mala  fide under the advice of  the  Chief  Election Commissioner  with  the sole object of getting  rid  of  the petitioner  and the other Election Commissioner because  the Chief  Election Commissioner was from the beginning  illdis- posed  towards  the creation of the posts  of  the  Election Commissioners.  It is also alleged that there  were  differ- ences of opinion between the Chief Election Commissioner  on the one hand and the Election Commissioners on the other and the  former  desired that he should have the sole  power  of decision-making  in  all matters. Lastly, it  is/  contended that the petitioner’s removal affected him materially  since after  a  distinguisthed career as a civil  servant  he  had joined  the Bihar Public Service Commission as its  Chairman only on 30th September, 1989 and had resigned the said  post on  14th October, 1989 to join as Election  Commissioner  on 16th  October,  1989. His career was abruptly  ended  within less  than three months thereafter. It was also  urged  that while announcing the removal, his photograph was flashed  on the television during a news-bulletin of 2.1. 1990  subject- ing him to severe 166 loss  of  dignity and reputation. This act also  shows  mala fides  of the Janata Dal which was a part of the  succeeding government and had a prejudice against him.      4.  The  petition  is resisted by  the  1st  respondent (Union  of  India) and the 2nd respondent  (the  then  Chief Election  Commissioner).  No separate  counter-affidavit  is filed on behalf of the 3rd respondent   Election Commission. After the sad demise of the 2nd respondent during the  pend- ency  of  the  petition, he was deleted as a  party  to  the petition.  However, the reply filed by him is  being  relied upon on behalf of the other respondents. In the reply  filed by  the ist respondent, it is contended that  the  President had issued the impugned notification rescinding the  notifi- cation  of  7th October, 1989 in bona fide exercise  of  his power  under  the first part of clause (2)  of  Article  324 the Constitution which authorises the President to determine the      strength  of the Election Commission  and  fix  the number of Election Commissioners from time to time. There is no limitation on the power of the President to determine and fix  the  strength of the Election Commission from  time  to time. The exercise of the said power is based on the subjec- tive  satisfaction  of the President formed  on  the  advice tendered  by  the Counsel of Ministers. In support  of  this contention,  it is pointed out that whereas  Article  324(2) creates  an  obligation that the Election  Commission  shall consist  of the Chief Election Commissioner, as regards  the appointment  of the other Election Commissioners  and  their number,  the matter is left, without any limitation, to  the discretion of the President. It is further pointed out  that when  the President had issued the notifications of 7th  and

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16th  October, 1989, he had expected that on account of  the reduction in the lower-age limit of the voters from 21 to 18 years necessitating revision of the electoral rolls and  the impending statutes, viz., the Panchayat Raj and Nagar Palika Bills,  which were then before the Parliament, the  work  of the Election Commission would increase, and to cope up  with the  same, the augmentation of the strength of the  Election CommissiOn  was  necessary.  However,  the  electoral  rolls became  ready and the two Bills in question lapsed  on  13th October, 1989. Hence, the augmented strength was  considered surplus  to  the requirement. A decision  was  ’  therefore, taken to abolish the posts and the impugned notification  of 7th  October,  1989 was rescinded. Consequent upon  it,  the appointments  of the petitioner and the other Election  Com- missioner  came  to an end. It was not  necessary  to  issue another  notification  to rescind the notification  of  16th October,  1989  by which the said  appointments  were  made. However, by way of abundant precaution, the notification  of 16th  October, 1989 was also rescinded by another  notifica- tion 167 of  1st  January, 1990. It was, thus, according to  the  1st respondent, a case of a termination of service of the  peti- tioner consequent upon the abolition of the post. It was not a  case of a removal of the petitioner from service  as  al- leged  by the petitioner. In the affidavit filed by the  2nd respondent  he has been candid in stating that there was  in fact  no  need of any Election Commissioner  and  the  Chief Election  Commissioner  along with his  then  machinery  was capable of coping with the work. However, after the appoint- ment of the Election Commissioners, the Election  Commission took  decisions  on all matters unanimously  although  there were  differences of opinion. There was no occasion for  the Chief Election Commissioner either to resent the appointment of the petitioner and the other Election Commissioner or  to recommned their removal. In fact, the petitioner himself has admitted on the petition that the Chief Election Commission- er  had at no stage made any recommendation for his  removal or  for the removal of the other Election  Commissioner.  He has also vehemently denied the allegations made against  him qua  the  various incidents and has contended  the  all  his actions  were in conformity with law and the past  practices of the Commission.               5.  Article 324 of the Constitution  reads  as               follows:               "324.  Superintendence, direction and  control               of  elections  to  be vested  in  an  Election               Commission.--(1)     The      superintendence,               direction  and control of the  preparation  of               the  electoral rolls for, and the conduct  of,               all  elections  to  Parliament,  and  to   the               Legislature of every State and of elections to               the  offices of President  and  Vice-President               held  under this Constitution shall be  vested               in   a   Commission  (referred  to   in   this               Constitution as the Election Commission).                         2.  The  Election  Commission  shall               consist of the Chief Election Commissioner and               such  number of other Election  Commissioners,               if any, as the President may from time to time               fix and the appointment of the Chief  Election               Commissioner and other Election  Commissioners               shall,  subject to the provisions of  any  law               made in that behalf by Parliament, be made  by               the President.

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                       (3) When any other Election  Commis-               sioner  is  so appointed  the  Chief  Election               Commissioner shall act as the Chairman of  the               Election Commission.               168                        (4)  Before each general election  to               the House of the People and to the Legislative               Assembly  of each State, and before the  first               general  election and thereafter  before  each               biennial  election to the Legislative  Council               of each State having such Council, the  Presi-               dent may also appoint after consultation  with               the Election Commission such Regional  Commis-               sioners as he may consider necessary to assist               the Election Commission in the performance  of               the  functions conferred on the Commission  by               clause (1).                        (5) Subject to the Provisions of  any               law  made  by Parliament,  the  conditions  of               service  and tenure of office of the  Election               Commissioners  and the Regional  Commissioners               shall  be  such as the President may  by  rule               determine:                         Provided  that  the  Chief  Election               Commissioner  shall  not be removed  from  his               office  except in like manner and on the  like               grounds  as a Judge of the Supreme  Court  and               the  conditions of service of the Chief  Elec-               tion  Commissioner shall not be varied to  his               disadvantage after his appointment:                         Provided  further  that  any   other               Election  Commissioner or a  Regional  Commis-               sioner shall not be removed from office except               on  the recommendation of the  Chief  Election               Commissioner.                         (6)  The President, or the  Governor               of  a State, shall, when so requested  by  the               Election  Commission,  make available  to  the               Election  Commission or to a Regional  Commis-               sioner such staff as may be necessary for  the               discharge  of the functions conferred  on  the               Election Commission by clause (1)."     The  provisions of clause (1) of the Article  show  that the  superintendence, direction and control of the  prepara- tion  of  the  electoral rolls for and the  conduct  of  all elections  to  Parliament and to the  Legislature  of  every State  and of elections to the offices of the President  and Vice-President  are vested in the Election  Commission.  The relevant provisions of the Representation of the People Act, 1950  and  of  the Representation of the  People  Act,  1951 further  show that various functions are entrusted  to,  and powers  are conferred upon, the Commission in the matter  of the conduct of election to the Parliament and  to the Legislatures of the States. In the discharge  of these  duties and in the exercise of these powers, the  Com- mission has to act on its own and to take various  dicisions and implement them as an independent body. In the  discharge of  its  duties  and functions, it is not  amenable  to  the control  of  any other body. There is no  doubt,  therefore, that  the Election Commission as envisaged by the  Constitu- tion  is an independent institution and has to  function  as such.     6. The salient features of the composition of the  Elec- tion Commission as given in clauses (2), (3) and (4) of  the Article  are that the Commission shall always consist  of  a

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permanent incumbent, viz., the Chief Election  Commissioner. But  the President has also been given the power to  appoint such number of other Election Commissioners as     may, from time to time, fix. In other words, while the appointment  of the  Chief Election Commissioner is a must, the  appointment of  the other Election Commissioner or Commissioners is  not obligatory.  What is further, the number of  other  Election Commissioners  is  left to the descretion of  the  President depending  upon the need felt from time to time. This  would mean that both the increase and the reduction in the  number of the Election Commissioners would depend upon the require- ments of the time as assessed by the President.     7. The power given to the President to appoint the Chief Election  Commissioner and other Election  Commissioners  is subject to the provisions of any law that may be made by the Parliament in that behalf. The Parliament has thus  reserved to  itself the power to regulate these appointments.  It  is obvious  from clauses (2) and (3), that when the  Commission consists  only of Chief Election Commissioner, it is he  who alone constitutes the Commission and acts as such.  However, when other Election Commissioners are appointed, the Commis- sion  consists of both the Chief Election  Commissioner  and the  other Election Commissioners and together they  consti- tute  the  Commission. In such a case,  the  Chief  Election Commissioner  acts as the Chairman of the  Election  Commis- sion.     8.  Clause (4) of the Article gives power to the  Presi- dent  to appoint, after consulting the Election  Commission, such Regional Commissioners as he may consider necessary  to assist  the  Election Commission in the performance  of  the functions conferred on the Commission. The Regional  Commis- sioners  abviously do not constitute the Commission but  are appointed to assist it. 9. However, in the matter of the conditions of service and 170 tenure  of office of the Election Commissioners, a  distinc- tion is made between the Chief Election Commissioner on  the one hand and Election Commissioners and Regional Commission- ers  on  the other. Whereas the conditions  of  service  and tenure of office of all are to be such as the President may, by rule determine, a protection is given to the Chief  Elec- tion  Commissioner in that his conditions of  service  shall not be varied to his disadvantage after his appointment, and he  shall  not  be removed from his office  except  in  like manner  and  on the like grounds as a Judge of  the  Supreme Court.  These  protections are not available either  to  the Election  Commissioners  or to the  Regional  Commissioners. Their  conditions  of service can be varied  even  to  their disadvantage after their appointment and they can be removed on  the recommendation of the Chief  Election  Commissioner, although  not otherwise. It would thus appear that in  these two respects not only the Election Commissioners are not  on par  with  the  Chief Election Commissioner,  but  they  are placed  on par with the Regional Commissioners although  the former  constitute the Commission and the latter do not  and are only appointed to assist the Commission.      10.  It  is necessary to bear these  features  in  mind because  although clause (2) of the Article states that  the Commission  will consist of both the Chief Election  Commis- sioner and the Election Commissioners if and when appointed, it  does  not appear that the framers  of  the  Constitution desired to give the same status to the Election  Commission- ers  as that of the Chief Election Commissioner.  The  Chief Election  Commissioner  does not, therefore,  appear  to  be primus  inter parties. i.e., first among the equals, but  is

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intended  to be placed in a distinctly higher position.  The conditions  that the President may increase or decrease  the number  of Election Commissioners according to the needs  of the  time that their service conditions may be :  varied  to their  disadvantage  and  that they may be  removed  on  the recommendation  of the Chief Election Commissioner  militate against their being of the same status as that of the  Chief Election  Commissioner. In this connection, the  controversy as  to whether there should be a one member Commission or  a multi-member  Commission  also assumes a  little  importance since it throws light both on the genesis of Article 324  as well as its implications. We may first refer to the relevant discussion on the subject in the Constituent Assembly.      11. In the Draft Constitution, the present Article  324 was numbered as Article 289. It appears from Dr.  Ambedkar’s introductory  comments on the Article (Constituent  Assembly Debates,  Vol.  VIII  p. 905) that  the  Drafting  Committee appointed on the Fundamen- 171 tal  Rights had made a report that the independence  of  the elections  and  the  avoidance of any  interference  by  the executive  in  the elections to the  legislature  should  be regarded  as  a Fundamental Right and provided for,  in  the Chapter  dealing  with Fundamental Rights. When  the  matter came  up before the House, it was decided to treat it as  of fundamental  importance but to provide for it in some  other part of the Constitution and not in the chapter dealing with Fundamental Rights. The House had affirmed without any  kind of  dissent that in the interests of purity and  freedom  of elections,  the Commission should be free from any  kind  of interference from the executive of the day. Article 289 (now Article  324)  was designed to carry out that  part  of  the decision  of the House. Explaining the provisions of  clause (2) of the Article, Dr. Ambedkar stated that there were  two alternatives before the Drafting Committee, viz., either  to have  a permanent body consisting of 4 or 5 members  of  the Election Commission who would continue in office  throughout without  any  break, or to permit the President to  have  an adhoc  body appointed at the time when there is an  election on  the anvil. The Drafting Committee had steered  a  middle course.  What the Committee proposed by the said clause  was to  have  permanently  in office one man  called  the  Chief Election  Commissioner so that the skeleton machinery  would always  be available This was felt sufficient,  taking  into consideration all exigencies  At the same time, it was  felt that  when the elections come up, the President may  add  to the machinery by appointing other members of the Commission. Commenting  upon  clause (4) of the then  Article  289  (now clause (5) of Article 324), Dr. Ambedkar stated as follows:               "So  far as clause (4) is concerned,  we  have               left the matter to the President to  determine               the  conditions of service and the  tenure  of               office of the members of the Election  Commis-               sion,  subject to one or two conditions,  that               the  Chief Election Commissioner shall not  be               liable to be removed except in the same manner               as a Judge of the Supreme Court. If the object               of this House is that all matters relating  to               Elections should be outside the control of the               Executive  Government of the day, it is  abso-               lutely necessary that the new machinery  which               we  are setting up, namely, the Election  Com-               mission  should be irremovable by- the  execu-               tive by a mere fiat. We have, therefore, given               ’the  Chief  Election  Commissioner  the  same

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             status so far as removability is concerned  as               we  have  given to the Judges of  the  Supreme               Court.  We, of course,do not propose  to  give               the  same status to the other members  of  the               Commission. We have left the               172               matter  to  the President as  to  the  circum-               stances  under  which  he would  deem  fit  to               remove  any other member of the Election  Com-               mission,  subject  to one condition  that  the               Chief  Election  Commissioner  must  recommend               that the removal is just and proper.               (Emphasis supplied)     Prof.  Shibban Lal Saksena wanted, among  other  things, the  appointment of the Chief Election Commissioner as  well as  of  the Election Commissioners to be confirmed  by  two- third majority in a joint session of both Houses of  Parlia- ment.  He also wanted both the Chief  Election  Commissioner and  the  Election Commissioners to be removed by  the  same process,  viz., in like manner and on the like grounds as  a Judge of the Supreme Court, and non-variation of the service conditions of the Election Commissioners to their  disadvan- tage  as was provided for in the service conditions  of  the Chief  Election Commissioner. This amendment was  supported, among  others, by Pandit Hriday Nath Kunjru. The  amendments were not accepted by the House, and the distinction  between the Chief Election Commissioner and the Election Commission- ers  with regard to the security of the  service  conditions and  the  procedure of their removal was maintained  as  was proposed.     12.  It  appears that the issue whether  the  Commission should be uni-member or multi-member had remained alive even after  the  adoption of the Constitution, and it  cannot  be said  that  it has lost its relevance even  today.  This  is clear from the Election Commission’s reports of the  earlier period.  The 2nd respondent in the Commission’s  report  for 1986-87, had referred to this issue and observed therein, as pointed out by the petitioner himself, as follows:               "though  three  of the former  Chief  Election               Commissioners have opposed a multi-member body               on  the ground, inter alia, that  quick  deci-               sions  are needed in Election matters and  the               Commission acts in actual practice in  consul-               tations with various authorities, agencies and               that  a process of deliberation  precedes               its decisions and there is considerable  force               in  what they have said, it would, in view  of               the demand from certain quarters for a  multi-               member Commission, be desirable to examine the               proposal and take a decision after  ascertain-               ing  the views of the various  political  par-               ties. A suggestion to this effect was made  to               the  Government by the Commission through  its               letter dated               173               October 29, 1986 to the Law Minister".     As stated by the 2nd respondent, the then Prime Minister had categorically stated in Parliament in December 1988 that he  was  against a multi-member Election Commission.  It  is presumed that this statement was made by the Prime  Minister after  the Government had considered the views expressed  by the  2nd respondent in his letter of 29th October,  1986  to the Law Minister.     13.  Unfortunately, there was no discussion in the  Con- stituent  Assembly  on the subject of the  procedure  to  be

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adopted  by the Commission in transacting its business  when Election  Commissioners  are appointed in  addition  to  the Chief Election Commissioner. We are     not aware as to what precise relationship between the Chief Election Commissioner and the other Election Commissioners, if and when appointed, was assumed by the earlier three Chief Election  Commission- ers  when they opposed the multi-member Election  Commission or  what  suggestion  was made by the  2nd  respondent  with regard to the said relationship in his letter of 29th  Octo- ber,  1986  to the Law Minister. As we have  seen  from  the provisions of clause (3) of Article 324, all that the  Arti- cle  says  is that when any other Election  Commissioner  is appointed, the Chief Election Commissioner shall act as  the Chairman of the Election Commission.     14.  What is, therefore, evident from the discussion  of the  framers of the Constitution is, firstly, they  did  not want  to give the same-status to the Election  Commissioners as  of the Chief Election Commissioner and,  secondly,  they wanted  the  Chief Election Commissioner to  be  in  overall control  of  the  business of the  Commission.  The  nearest analogy of another Constitutional institution that comes  to our  mind  in  this connection, is that of  the  Council  of Ministers under Articles 74 and 163 of the Constitution. The Prime  Minister and the Chief Minister, as the case may  be, are at the head of the Council of Ministers and they togeth- er  with  the other Ministers constitute the  council.  They are, however, not bound by the views of the other  Ministers and may even override them. Nor have the other Ministers the same  power  as the Prime Minister or  the  Chief  Minister. There  is  also some similarity between the  powers  of  the Prime  Minister and the Chief Minister on the one  hand  and the Chief Election Commissioner on the other, in the  matter of  recommendations for the removal of the  other  Ministers and Commissioners respectively. There is no doubt that there is an important distinction between the Council of Ministers and the Election Commission in that whereas the Prime Minis- ter or 174 he  Chief  Minister  is appointed by the  President  or  the Governor and he other Ministers are appointed by the  Presi- dent  or the Governor on he advice of the Prime Minister  or the Chief Minister, the appointnent of both the Chief  Elec- tion  Commissioner and the other Election  Commissioners  as the law stands today, is made by the President under  Artii- cle 324(2) of the Constitution. It has, however, to be noted that he provisions of the said Article have left the  matter of  appointment of the Chief Election Commissioner  and  the other Election Commissioners to be regulated by a law to  be made  by  the Parliament, and the  President  exercises  the power  of  appointing them today because of the  Absence  of such  law  which has yet to be made. In pointing  out  these similarities we do not intend to place the two  institutions on  par. Instead, we want to stress that in the  absence  of rules  to the contrary, the members of a  multi-member  body are not and need not always be on par with each other in the matter of their rights, authority and powers. In the case of the  functioning  of the Council of Ministers there  is  the Westministerial Convention crystallised into  an,unquestion- able  rule,  to back it. We are not aware if  there  is  any Election Commission in a similar Constitutional framework as ours  in any other part of the world and of its  composition and  the  manner of its working. But, if there is  one,  the method  of its working will be worth studying, in this  con- nection.     15.  It is further an acknowledged rule  of  transacting

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business  in a multi-member body that when there is  no  ex- press  provision  to the contrary, the business  has  to  be carried on unanimously. The rule to the contrary such as the decision  by majority, has to be laid down  specifically  bY spelling out the kind of majority--whether simple,  special, of all the members or of the members present and voting etc. In  a case such as that of the Election Commission which  is not  merely  an advisory body but an executive  one,  it  is difficult to carry on its affairs by insisting on  unanimous decisions  in all matters. Hence, a realistic  approach  de- mands that either the procedure for transacting business  iS spelt out by a statute or a rule either prior to or simulta- neously  with the appointment of the Election  Commissioners or that no appointment of Election Commissioners is made  in the  absence of such procedure. In the present case,  admit- tedly, no such procedure has been laid down.     16. For this reason, again, we are not impressed by  the stress laid on behalf of the petitioner on the provisions of clause (4) of Article 324 in relation to the appointment  of the  Regional  Commissioners.  The fact  that  the  Regional Commissioners are to be appointed 175 by  the  President in consultation with  the  Commission  to assist  the  Commission  to perform  its  functions,  though places the Election Commissioners on a higher pedestal  than the  Regional  Commissioners,  does not raise  them  to  the status of the Chief Election Commissioner. The provision  is intended  to vest the President with the powers of  appoint- ment of the Regional Commissioners for a particular purpose, and the framers of the Constitution, it appears, desired  to give  a constitutional status to the Regional  Commissioners also, as and when they are appointed. The provision,  though spells out the relationship between Election Commission  and Regional Commissioners, does not help to throw light on  the relationship  between  the Chief Election  Commissioner  and Election  Commissioners inter se. On the other hand,  clause (5)  of the Article, by placing the  Election  Commissioners Regional  Commissioners  on  par in the  matter  of  service conditions and their removability, reinforces the assumption that Election Commissioners do not enjoy the same status and authority as that of the Chief Election Commissioner.     17. The experience of the short period during which  the petitioner and the other Election Commissioners were in  the Commission,  as has been brought out in the petition and  in the  counter filed by the then Chief Election  Commissioner, shows that were it not for the restraint and sagacity  shown by the Chief Election Commissioner, the work of the  Commis- sion  would  have come to a standstill  and  the  Commission would have been rendered inactive.     18. In the first instance, the petitioner and the  other Election  Commissioners were appointed when the work of  the Commission  did  not warrant their appointment.  The  reason given  by the ist respondent (Union of India), that  on  ac- count of the Constitution (61st Amendment) Act reducing  the voting  age and the ConstitUtion (64th Amendment) and  (65th Amendment) Bills relating to election to the Panchayats  and Nagar  Palikas, the work of the Commission was  expected  to increase  and, therefore, there was need for  more  Election Commissioners,  cuts no ice. As has been pointed out by  the 2nd  respondent, the work relating to revision of  electoral rolls on account of the reduction of voting age was complet- ed  in all the States except Assam by the end of  July  1989 itself,  and at the Conference of the Chief Electoral  Offi- cers  at Tirupati, the 2nd respondent had declared that  the entire preparatory work relating to the conduct of the  then

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ensuing general elections to the Lok Sabha would be complet- ed  by  August  in the whole of the  country  except  Assam. Further,  the Constitution (64th and 65th  Amendment)  Bills had already fallen in Parliament, before the 176 appointments. In fact, what was needed was more  secretarial staff  for which the Commission was pressing, and  not  more Election Commissioners. What instead was done was to appoint the  petitioner and the other Election Commissioner on  16th October,  1989. Admittedly, further the views of  the  Chief Election Commissioner were not ascertained before making the said  appointments. In fact, he was presented with them  for the first time in the afternoon of the same day, i.e.,  16th October, 1989.     What follows is more instructive and interesting for  it lends  considerable  force to what the  2nd  respondent  has stated  in  this connection in his reply.  Barely  24  hours after  the  appointment of the Election  Commissioners,  the Principal Secretary to the Prime Minister called on the  2nd respondent  in the forenoon of 17th October, 1989  and  con- veyed to him the desire of the Prime Minister that the go.,- at elections to the Lok Sabha should be held on a particular date and that the announcement in that behalf should be made by  the Commission forthwith and before 2 p.m. on that  day, in  any  case. It appears that the 2nd respondent  took  the stand that it was for the Commission and not for the Govern- ment  to  fix  the date of the election.  The  new  Election Commissioners joined issue with him with regard to his  said stand  and  insisted that the Commission forthwith  make  an announcement Of the date of election as desired by the Prime Minister.     19. We do not propose to refer to all the other disputes which  arose between the Chief Election Commissioner on  the one  hand and the petitioner and the other Election  Commis- sioner on the other. But it appears from the contents of the petition  and of the reply filed by the 2nd respondent  that the petitioner and the other Election Commissioner  probably misunderstood their role and thought that they were appoint- ed  to  control  the Chief Election  Commissioner  at  every stage. This is evident from two instances, among others.  It appears  that a Writ Petition No. 3205 of 1989  [Indian  Na- tional Congress v. Election Commission and Ors.]  was  filed in the Delhi High Court on November 9, 1989, and a notice of the  same was received by the Commission at about 6 p.m.  on the  same day. According to the said notice, the with  peti- tion  was scheduled to come up for hearing before  the  High Court on the following day, i.e., November 10, 1989. By  the time  the notice was received in the office of  the  COmmis- Sion, the 2nd respondent as well as the Election Commission- ers  had left the office. The Deputy  Election  Commissioner contacted the 2nd respondent at his residence over the phone and mentioned the names of some counsel and also referred to the consistent practice of the Commission not to engage as 177 its counsel law officers of the Government of India in cases where the party in power is a party to the suit. To the  2nd respondent  it was a matter of a routine nature in  view  of the established practice of the Commission, and he suggested the  name of one more counsel in addition to the names  men- tioned  by the Deputy Election Commissioner. Accordingly,  a senior  advocate,  Shri V (we are not  mentioning  the  full names  of the Counsel here although they are  candidly  dis- closed in the reply) was engaged, and he was briefed in  the matter  from about 8 p.m. to 9 p.m. on that day,  i.e.,  9th November, 1989. Later on, the petitioner herein rang up  the

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2nd  respondent  to  say that Shri D,  the  then  Additional Solicitor General be engaged to represent the Commission and he  also  told him that he was so advised by the  Union  Law Secretary.  The 2nd respondent told him that firstly it  was too late and secondly it was contrary to the practice of the Commission.  Later on, it inspired that the petitioner  rang up  the other Election Commissioner, Shri V.S.  Seigell  and thereafter  rang  up the Deputy  Election  Commissioner  and directed  him to withdraw the brief from Shri V with a  view to entrust it to Shri D. In order to avoid any  controversy, the 2nd respondent acquiesced in the proposed appointment of Shri  D. In the morning of both November, 1989, Shri  D  was approached  to  act as Commission’s  counsel.  He,  however, expressed  his  inability to do so. In  the  meanwhile,  the petitioner had sent a note against the alleged violation  of the  procedure in that he and his other colleague  were  not consulted  while  appointing Shri V. The withdrawal  of  the brief from Shri V and the refusal of Shri D to appear in the matter  placed  the Election Commission in  an  embarrassing position before the High Court since the Commission was  not represented  by any counsel as none of the standing  counsel of  the Central Government at the Delhi High Court was  also willing  to act as the Commission’s counsel. An  application for adjournment of the matter to the following day, i.e.,  1 1th November 1989 was made on behalf of the Commission which was  reluctantly granted by the Court as the  following  day happened  to be a non-working day of the Court.  It  appears that confronted with the said situation, the petitioner  and the  other  Commissioner realised their  mistake  and  later agreed  to  the engagement of any  other  suitable  counsel. Thereafter, Shri R, another senior advocate was engaged  who represented  the CommisSion before the High Court  on   11th November, 1989.     The  second  instance gives a glimpse of  a  still  more contentious  attitude adopted by the petitioner. It  appears that a "closed door" meeting of the Chief Electoral Officers was held on December 14, 1989 and the Chief Election Commis- sioner in his inaugural speech had 178 referred  to  the policies, procedures and practices  to  be followed.  The petitioner objected to this speech  insisting that before making the speech he should have been consulted. He  also objected to the manner in which the Chief  Election Commissioner  handled  the subjects and the  decisions  were taken in the meeting. This was so in spite of the fact  that the  petitioner  and  the other  Election  Commissioner  had participated  in the Conference, and everyone  participating in  it including the juniormost Chief Election  Officer  was free  to express his opinion on the matters covered  in  the address  and the decisions were arrived at on the  basis  of the  views expressed by the majority of the  Chief  Election Officers.     20.  Although  the whole foundation of  the  contentions advanced  on behalf of the petitioner is the need  to  safe- guard  the independer of the Commission, we are afraid  that the  manner  of appointment  the petitioner  and  the  other Election  Commissioner, and the attitude adopted by them  in the  discharge of their functions was hardly  calculated  to ensure  free and independent functioning of the  Commission, much  less its smooth working. In the circumstances  and  in the  absence of rules to regulate the  relationship  between the  Chief  EleCtion  Commissioner and  the  other  Election Commissioners  no  one need shed tears that the  posts  were abolished.     21.  There  is no doubt that two heads are  better  than

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one, and particularly when an institution like the  Election Commission  is entrusted with vital functions, and is  armed with  exclusive uncontrolled powers to execute them,  it  is both  necessary and desirable that the powers are not  exer- cised  by  one individual, however, all-wise he may  be.  It ill-conforms  the tenets of the democratic rule. It is  true that  the  independence of an institution depends  upon  the persons  who man it and not on their number. A single  indi- vidual  may sometimes prove capable of withstanding all  the pulls and pressures, which many may not. However, when  vast powers are exercised by an institution which is  accountable to none, it is politic to entrust its affairs to more  hands than  one.  It  helps to assure judiciousness  and  want  of arbitrari  ss.  The fact, however, remains that  where  more individuals  than one, man an institution, their roles  have to be clearly defined, if the functioning of the institution is not to come to a naught.     22.  It is true that the Union of India in  their  reply have  not  been  all that candid with the  reasons  for  the abolition  of the posts. They have merely stated that  since the  Constitution (64th & 65th Amendment) Bills  had  lapsed and the revision of electoral rolls on account of 179 the lowering of the age was also completed before the gener- al elections which took place in November, 1989, the reasons and events which occasioned the appointment of the  Election Commissioners ceased to exist, and the Government on assess- ing the prevailing position bona fide came to the conclusion that  the volume of work in the changed context and  circum- stances did not warrant the continuance of the posts.  These reasons  are  not convincing since, as we have  pointed  out earlier  from  the contents of the reply filed  by  the  2nd respondent,  they had ceased to be relevant even before  the appointment of the two Commissioners was made on 16th  Octo- ber,  1989.  Yet, the appointments were made and  the  rules governing  their  service conditions were  also  promulgated simultaneously, which assured them the tenure of five  years or  upto the superannuation age of 65 years  whichever  hap- pened earlier. The facts as they appear from record,  there- fore,  show that the then Government had thought it  fit  to make  the two appointments although there was no need to  do so. What other considerations weighed with the then  Govern- ment  in making the appointments is anybody’s guess, and  we do  not  propose to go into them. But we expected  that  the Union  of India would candidly admit the initial mistake  of making  the  said appointments rather than defend  them  on" non-existent grounds. It appears that there is an impression in some quarters that if the’ Government admits its  mistake whether it is committed by the same Government or the earli- er  Government,  it loses its face. Nothing can  be  farther from reality. In a democratic regime, the Government  repre- sents  the people. It adds to its respectability and  credi- bility,  if the Government also owns its  mistakes  frankly. The’  truth of the matter as is apparent from the record  is that  not only there was no need for the said  appointments, but  the  appointments in the absence of the  definition  of their roles in the Commission, was creating an untoward  and unworkable  situation  rendering the  Commission  internally torn  and  ineffectual  in its functioning.  There  was,  of course,  an option before the Government, viz., to  continue with the experiment of the multi-member Commission by defin- ing the roles of the new Commissioners. This course,  howev- er,  might  have  required either framing of  the  rules  of business  or enactment of a statute or an amendment  to  the provisions of Article 324 in view particularly of the provi-

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sions  of the 2nd proviso to clause (5) thereof. We  express no  opinion   on the same except stating that  if  the  said course  was thought of, it might have taken  a  considerable time.  In  the meanwhile, the intractable situation  in  the Commission’s  working  would have continued and  might  even have deteriorated. 23.  In the view that we have taken, namely, that there  was no 180 need for the posts of the Election Commissioners at the time the  appointments  were made and that in the  absence  of  a clear  definition of their role in the Commission,  particu- larly,  vis-a-vis the Chief Election Commissioner,  the  ap- pointments  were an oddity, the abolition of the  posts  far from  striking at the independence of the  Commission  paved the  way for its smooth and effective functioning.  In  view further of the fact that for reasons stated above, it is not possible  to hold that the Election Commissioners  have  the same powers and the authority as the Chief Election  Commis- sioner,  and it may well be that the Chief Election  Commis- sioner has the power to disregard and override the views  of the  Election  Commissioners, the abolition of  their  posts least  infringed  on  the independence  of  the  Commission. Hence,  we  are not enamoured of the second  contention  ad- vanced on behalf of the petitioner, viz. that the  abolition of the posts tampered directly or indirectly with the  inde- pendence of the Commission.      24.  As regards the first contention, namely,  that  in view  of the service rules, the Election Commissioners  were entitled to remain in their posts for a period of five years or  till they attained the age of 65 years  whichever  event occurred earlier, we are of the view that this is not a case of a premature termination of service. It is a clear case of the  abolition  of posts on account of  the  reasons  stated earlier and the termination of the service is a  consequence thereof.  Hence, the termination of service is not  open  to challenge  on  the ground of any illegality.  For  the  same reason,  we are also not attracted by the argument that  the notifications  abolishing  the two posts  and  removing  the petitioner  and the other Election Commissioner were  issued mala fide at the instance of the Chief Election Commissioner who  allegedly wanted to get rid of them. We are  satisfied, on the basis of the record, that the Chief Election  Commis- sioner  had  never recommended their removal. In  fact,  the petitioner  himself  has admitted that his removal  and  the removal  of the other Election Commissioner was not  on  the recommendation of the Chief Election Commissioner under  the 2nd  proviso to clause (5) of Article 324. There is  further nothing  brought  on record by the petitioner to  show  that even otherwiSe the Goverment while abolishing the posts  had acted on the suggestion of the Chief Election  Commissioner. On  the other hand, it is clear from the   contents  of  the petition  as well as the reply filed by the  2nd  respondent that  although there were bickerings even on  petty  issues, all the decisions were taken ultimately unanimously. It  is, however,  another thing that this unison in working, in  the circumstances,  could not have been guaranteed for all  time to  come, and the Government if they desired  the  contintu- ance of the two Commissioners has an option to make the 181 rules  of business etc. as stated earlier. That the  Govern- ment chose one rather than the other option is no ground  to allege  mala  fides against them and much less  against  the Chief  Election Commissioner. It may be pointed out in  this connection  that as admitted by the petitioner  himself  al-

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though  the earlier three Chief Election  Commissioners  had opined  against  a multi-member Commission, the  second  re- spondent Chief Election Commissioner was inclined in  favour of the concept. Hence, the allegations of mala fides against the Chief Election Commissioner are hard to accept.     25.  The last of the contentions advanced on  behalf  of the  petitioner is in two parts. The first part  relates  to the  material  loss on account of the cutting short  of  the tenure  of  the petitioner. Such loss is not  unknown  in  a service  career and is one of the exigencies of  employment. The creation and abolition of post is the prerogative of the executive, and in the present case of the President. Article 324(2)  leaves it to the President to fix and  appoint  such number of Election Commissioners as he may from time to time determine.  The power to create the posts is unfettered.  So also is the power to reduce or abolish them. If,  therefore, the President, finding that there was no work for the  Elec- tion Commissioners or that the Election Commission could not function, decided to abolish the posts, that was an exigency of  the  office held by the petitioner. In fairness  to  the petitioner,  we may record here that Shri Gopal  Subramaniam appearing for him made it clear at the very outset that  the petitioner  had not approched the court to make a  grievance of  his material loss but to assert the principle  that  the independence  of the Election Commission should not be  per- mitted to be tampered with, either directly or indirectly by the subterfuge of the abolition of the posts. We have  dealt with this aspect earlier inquite somedetail     26. We, however, find, some force in the second part  of the contention. The petitioner in paragraph 30 of his  peti- tion has averted as follows:               "The abolition of the post of Election Commis-               sioners  was  (lead news) in  the  Doordarshan               Hindi  News Bulletins at 7.30 pm and  8.40  pm               with photos of the two ’removed’ Commissioners               being  flashed on the TV screen.  They  quoted               the  Government  Press Note  which  sought  to               justify  abolition  of the two  posts  on  the               basis of a review of the work of the  Election               Commission but before that an earlier left-out               shot of the Prime Minister’s Press  Conference               was               182               shown  in  which viewers were made to  hear  a               question of a Press report casting  aspersions               on  the two newly appointed  Election  Commis-               sioners with the Prime Minister answering that               the Government would review these appointments               along  with other electoral reforms. This  was               clearly  defamatory and it was clear to  every               viewer that the two Election Commissioners had               been  ’removed’ for the reasons  contained  in               the insinuation of the press reporter and  the               official  reasons justifying abolition of  the               posts were a mere eye-wash.........  " In  their  reply  to this paragraph the Union  of  India  in paragraph 27 have stated:                         "With  reference to para 30,  it  is               submitted that the allegations and contentions               contained  therein are irrelevant and have  no               bearing  on  the issues arising  in  the  writ               petition.  The said allegations in  any  event               are not admitted. and the petitioner is put to               strict proof thereof." Although  we do not find any substance in the  grievance  of

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the petitioner against the answer given by the Prime  Minis- ter  to  the Press Reporter in the Press Conference,  we  do find  that the flashing of the photos of the petitioner  and the other Election Commissioner in their Hindi News Bulletin at  7.30 pm and 8.40 pm by the Doordarshan was  clearly  un- called  for.  There is nothing on record to  show  at  whose instance  it was done. But the act deserves condemnation  in the  strongest language.This may probably be the  first  in- stance where the photos of the officers whose services  were terminated  had  been  flashed on the TV  screen.  That  the Government  should casually dismiss this incident by  a  me- chanical  denial  of it, adds poignancy to the  episode.  We wish  that the Government had adopted a reasonable  attitude and  given  a  plausible answer to the  allegation.  It  was within  their powers to investigate the  incident.  Instead, they  have non-chalantly stated in the reply that "the  said allegations in any event are not admitted and the petitioner is  put to strict proof thereof". We must record our  strong disapproval  of the attitude adopted.by the  Government  to- wards the erstwhile public servants. It has neither enhanced the  prestige of the Government nor of the  public  service. That the flashing of the photos on the TV screen had nothing to  do with the validity of the abolition of the  posts  and the  consequential termination of the services of the  peti- tioner and the other Election Commissioner is no argument to justify the event. Government could have offered to investi- gate the 183 event  and to make proper amends to the petitioner  and  the other  Election  Commissioner. This event was cited  by  the petitioner  as  a proof of vindictiveness of the  Janta  Dal which  was  a partner in the then Government and  which  was allegedly  aggrieved by the stand taken by the  two  Commis- sioners  in the dispute relating to its symbol in  the  1989 elections. It was, therefore, all the more necessary to deal with  it seriously. We, however, leave the matter  here  be- cause  for the reasons we have discussed earlier, the  inci- dent has no bearing on the result of the petition.     27.  The  petition,  thus, fails and the  rule  is  dis- charged. In the circumstances of the case, there will be  no order as to costs. .T.N.A.                                        Petition dismissed. 184