N.RAMESH KUMAR Vs. STATE OF ANDHRA PRADESH
LAWS(APH)-2020-5-16
HIGH COURT OF ANDHRA PRADESH
Decided on May 29,2020

N.Ramesh Kumar Appellant
VERSUS
STATE OF ANDHRA PRADESH,Hitendra Vishnu Thakur V. State Of Maharashtra; Air 1994 Sc 2623 Respondents


Referred Judgements :-

A K GOPALAN VS. STATE OF MADRAS OPPOSITE PARTY; UNION OF INDIA [REFERRED TO]
K C GAJAPATI NARAYAN DEO VS. STATE OF ORISSA [REFERRED TO]
STATE OF PUNJAB VS. MANOHAR SINGH PRATAP SINGH [REFERRED TO]
BUDHAN CHOUDHRY VS. STATE OF BIHAR [REFERRED TO]
MEMBER BOARD OF REVENUE VS. ARTHUR PAUL BENTHALL [REFERRED TO]
STATE OF BOMBAY VS. ALI GULSHAN [REFERRED TO]
RAM KRISHNA DALMIA SHRIYANS PRASAD JAIN JAI DAYAL DALMIA VS. UNION OF INDIA [REFERRED TO]
COMMISSIONER OF INCOME TAX MYSORE TRAVANCORE COCHIN AND COORG BANGALORE COMMISSIONER OF INCOME TAX BANGALORE VS. INDO MERCANTILE BANK LIMITED PANGAL VITTAL NAYAK AND CO LIMITED [REFERRED TO]
SONAPUR TEA CO LIMITED MST MAZIRUNNESSA VS. DEPUTY COMMISSIONER AND COLLECTOR OF KAMRUP:DEPUTY COMMISSIONER AND COLLECTOR OF KAMRUP [REFERRED TO]
J K JUTE MILLS COMPANY LIMITED VS. STATE OF UTTAR PRADESH [REFERRED TO]
BOARD OF THISTEES AYURVEDIC AND UNANI TIBIA COLLEGE DELHI VS. STATE OF DELHI NOW DELHI ADMINISTRATION [REFERRED TO]
KALAWATI DEVI HARLALKA VS. COMMISSIONER OF INCOME TAX WEST BENGAL DURGA DEVI [REFERRED TO]
ISHWAR SINGH BINDRA VS. STATE OF UTTAR PRADESH [REFERRED TO]
ROHTAS INDUSTRIES VS. S D AGARWAL [REFERRED TO]
STATE OF MADHYA PRADESH VS. SHARDUL SINGH [REFERRED TO]
RUSTOM CAVASJEE COOPER RUSTOM CAVASJEE COOPER T M GURUBUXANI VS. UNION OF INDIA [REFERRED TO]
HIS HOLINESS KESAVANANDA BHARATI SRIPADAGALVARU SHRI RAGHUNATH RAO GANPAT RAO N H NAWAB MOHAMMAD IFTIKHAR ALI KHAN SHETHIA MINING AND MANUFACTURING CORPORATION LIMITED THE ORIENTAL GOAL GO LIMITED VS. STATE OF KERALA:UNION OF INDIA [REFERRED TO]
SAMSHER SINGH ISHWAR CHAND AGARWAL VS. STATE OF PUNJAB [REFERRED TO]
STATE OF ASSAM VS. AKSHAYA KUMAR DEB [REFERRED TO]
DWARKA PRASAD VS. DWARKA DAS SARAF [REFERRED TO]
CAREW AND COMPANY LIMITED VS. UNION OF INDIA AND TATA ENGG AND LOCOMOTIVE COMPANY LIMITED [REFERRED TO]
N SUBBA REDDY VS. ANDHRA UNIVERSITY [REFERRED TO]
TARULATA SHYAM VS. COMMISSIONER OF INCOME TAX WEST BENGAL [REFERRED TO]
R S JOSHI SALES TAX OFFICER GUJARAT J S JOSHI SALES TAX OFFICER GUJARAT VS. AJIT MILLS LTD:IDAR TALUKA SAHAKARI [REFERRED TO]
MOHINDER SINGH GILL VS. CHIEF ELECTION COMMISSIONER NEW DELHI [REFERRED TO]
R K GARG R K KARANJIA MADHU MEHTA P K SOI S S BEDI VS. UNION OF INDIA :UNION OF INDIA :UNION OF INDIA :UNION OF INDIA :UNION OF INDIA [REFERRED TO]
A K ROY THAN SINGH TYAGI DR VASANTKUMAR PANDIT VS. UNION OF INDIA [REFERRED TO]
S P GUPTA V M TARKUNDE J L KALRA IQBAL M CHAGLA MISS LILY THOMAS A RAJAPPA UNION OF INDIA D N PANDEY R PRASAD SINHA VS. UNION OF INDIA [REFERRED TO]
BANDHUA MUKTI MORCHA VS. UNION OF INDIA [REFERRED TO]
K NAGARAJ D SHANKARAN D SUBBA RAJU VS. STATE OF ANDHRA PRADESH:CHIEF SECRETARY OF ANDHRA PRADESH [REFERRED TO]
T VENKATA REDDY VS. STATE OF ANDHRA PRADESH [REFERRED TO]
UNION OF INDIA UNION OF INDIA BISWAROOP CHATTERJEE ACHINTA KUMAR BISWAS NABENDU BOSE LAXMI NARAYAN VS. TULSIRAM PATEL:SADANAND JHA:G P KOUSHAL:UNION OF INDIA:STATE OF MADHYA PRADESH [REFERRED TO]
M SATYANARAYANA VS. STATE OF KARNATAKA [REFERRED TO]
KASTURI LAL HARLAL VS. STATE OF UTTAR PRADESH [REFERRED TO]
D C WADHWA VS. STATE OF BIHAR [REFERRED TO]
D C SAXENA VS. STATE OF HARYANA [REFERRED TO]
P D AGGARWAL VS. STATE OF UTTAR PRADESH [REFERRED TO]
BHARAT SINGH DALLU NATHU RAM RAM PHAL VS. STATE OF HARYANA [REFERRED TO]
UJAGAR PRINTS II KWALITY SILK MILLS CO VS. UNION OF INDIA [REFERRED TO]
STATE OF PUNJAB VS. KAILASH NATH:MANGAL SINGH MINHAS [REFERRED TO]
BANSIDHAR VS. STATE OF RAJASTHAN [REFERRED TO]
S S DHANOA VS. UNION OF INDIA [REFERRED TO]
STATE OF HIMACHAL PRADESH VS. KAILASH CHAND MAHAJAN [REFERRED TO]
L P AGARWAL VS. UNION OF INDIA [REFERRED TO]
KRISHNA SWAMI RAJ KANWAR ADVOCATE VS. UNION OF INDIA [REFERRED TO]
STATE OF BIHAR VS. KAMLESH JAIN [REFERRED TO]
INDRA SAWHNEY VS. UNION OF INDIA [REFERRED TO]
SYED KHALID RIZVI OTHERS KRISHNA BEHARI SRIVASTAVA RAMESH PRASAD SINGH OTHERS VS. UNION OF INDIA [REFERRED TO]
NANDJEE SINGH VS. P O MEDICAL STUDENTS ASSOCIATION [REFERRED TO]
S R BOMMAI VS. UNION OF INDIA [REFERRED TO]
UNION OF INDIA VS. TUSHAR RANJAN MOHANTY [REFERRED TO]
STATE OF UTTAR PRADESH VS. PRADHAN SANGH KSHETTRA SAMITI [REFERRED TO]
T N SESHAN CHIEF ELECTION COMMISSIONER OF INDIA CHO S RAMASWAMY B K RAI COMMON CAUSE A REGISTERED SOCIETY VS. UNION OF INDIA :UNION OF INDIA :UNION OF INDIA [REFERRED TO]
C RAVICHANDRAN IYER VS. JUSTICE A M BHATTACHARJEE [REFERRED TO]
DELHI SCIENCE FORUM NATIONAL TELECOM FEDERATION OF TELECOM EMPLOYEES VS. UNION OF INDIA [REFERRED TO]
BIBI SAYEEDA VS. STATE OF BIHAR [REFERRED TO]
CHAIRMAN RAILWAY BOARD VS. C R RANGADHAMAIAH [REFERRED TO]
B R ENTERPRISES VS. STATE OF UTTAR PRADESH [REFERRED TO]
MALIK BROTHERS VS. NARENDRA DADHICH [REFERRED TO]
TRANSPORT CORPORATION OF INDIA VS. EMPLOYEES STATE INSURANCE CORPN [REFERRED TO]
ISHAR ALLOY STEELS LIMITED VS. JAYASWALS NECO LIMITED [REFERRED TO]
UNION OF INDIA VS. KANNADAPARA SANGHATANEGALA OKKUTA AND KANNADIGARA [REFERRED TO]
BALCO EMPLOYEES UNION REGD VS. UNION OF INDIA [REFERRED TO]
STATE OF PUNJAB VS. HARNEK SINGH [REFERRED TO]
HARBHAJAN SINGH VS. PRESS COUNCIL OF INDIA [REFERRED TO]
DAYAL SINGH VS. UNION OF INDIA [REFERRED TO]
DLF QUTAB ENCLAVE COMPLEX EDUCATION CHARITABLE TRUST VS. STATE OF HARYANA [REFERRED TO]
WELFARE ASSOCIATION ARP MAHARASHTRA VS. RANJIT P GOHIL [REFERRED TO]
UNION OF INDIA VS. SHIV DAYAL SOIN PRIVATE LIMITED [REFERRED TO]
DHARAM DUTT VS. UNION OF INDIA [REFERRED TO]
HAWRAH MUNICIPAL CORPORATION VS. GANGES ROPE COMPANY LIMITED [REFERRED TO]
BHAGAT HYDRO POWER CORPORATION LIMITED VS. STATE OF ASSAM [REFERRED TO]
VIRENDER SINGH HOODA VS. STATE OF HARYANA [REFERRED TO]
GURPAL SINGH VS. STATE OF PUNJAB [REFERRED TO]
KISHANSING TOMAR VS. MUNICIPAL CORPORATION OF THE CITY OF AMEDABAD [REFERRED TO]
M NAGARAJ VS. UNION OF INDIA [REFERRED TO]
M VENKATARAMANA HEBBAR VS. M RAJAGOPAL HEBBAR [REFERRED TO]
P VENUGOPAL VS. UNION OF INDIA [REFERRED TO]
N KANNADASAN VS. AJOY KHOSE [REFERRED TO]
VILLIANUR IYARKKAI PADUKAPPU MAIYAM VS. UNION OF INDIA [REFERRED TO]
STATE OF KERALA VS. PEOPLES UNION FOR CIVIL LIBERTIES [REFERRED TO]
STATE OF UTTARANCHAL VS. BALWANT SINGH CHAUFAL [REFERRED TO]
GOA GLASS FIBRE LTD VS. STATE OF GOA [REFERRED TO]
BONDU RAMASWAMY VS. BANGLORE DEVELOPMENT AUTHORITY [REFERRED TO]
B P SINGHAL VS. UNION OF INDIA [REFERRED TO]
STATE OF ASSAM VS. UNION OF INDIA [REFERRED TO]
PRAFULL GORADIA VS. UNION OF INDIA [REFERRED TO]
J S YADAV VS. STATE OF U P [REFERRED TO]
STATE OF TAMIL NADU VS. K SHYAM SUNDER [REFERRED TO]
UNION OF INDIA VS. BRIGADIER P S GILL [REFERRED TO]
MONNET ISPAT AND ENERGY LTD VS. UNION OF INDIA [REFERRED TO]
JAYANTHIPURAM GRAM VS. KRISHNA MACHILIPATNAM [REFERRED TO]
ASIAN PAINTS INDIA LTD VS. ADDITIONAL MUNICIPAL COMMISSIONER [REFERRED TO]
PANDRANKI PARVATHI VS. AKULA GANGARAJU [REFERRED TO]
RANGA REDDY DISTRICT PRADESH PANCHAYAT RAJ DEPARTMENT HYDERABAD VS. STATE OF A P [REFERRED TO]
S R BALASUBRAMANIYAN M L A VS. STATE OF TAMIL NADU [REFERRED TO]
GIRJASHANKER VS. LALU [REFERRED TO]
BHAGAT SINGH VS. EMPEROR [REFERRED TO]
ROHITASH KUMAR VS. OM PRAKASH SHARMA [REFERRED TO]
WHIRLPOOL OF INDIA LTD VS. UNION OF INDIA [REFERRED TO]
MANOJ NARULA VS. UNION OF INDIA [REFERRED TO]
COMMISSIONER OF INCOME TAX VS. VATIKA TOWNSHIP PRIVATE LIMITED [REFERRED TO]
M.THIRUPATHI RAO VS. STATE OF TELANGANA [REFERRED TO]
S.TIMMAIAH VS. STATE OF ANDHRA PRADESH [REFERRED TO]
SHER SINGH @ PARTAPA VS. STATE OF HARYANA [REFERRED TO]
ROXANN SHARMA VS. ARUN SHARMA [REFERRED TO]
UNION OF INDIA VS. A.K.BEHL [REFERRED TO]
SHREE BHAGWATI STEEL ROLLING MILLS VS. COMMISSIONER OF CENTRAL EXCISE [REFERRED TO]
NABAM REBIA, AND BAMANG FELIX VS. DEPUTY SPEAKER AND OTHERS [REFERRED TO]
AHMEDABAD MUNICIPAL CORPORATION VS. GTL INFRASTRUCTURE LTD. & ORS. ETC. [REFERRED TO]
KRISHNA KUMAR SINGH & ANR. VS. STATE OF BIHAR & ORS. [REFERRED TO]
VIPULBHAI MANSINGBHAI CHAUDHARY VS. STATE OF GUJARAT & ANROTHER [REFERRED TO]
MS. EERA THROUGH DR. MANJULA KRIPPENDORF VS. STATE (GOVT. OF NCT OF DELHI) [REFERRED TO]
MUKUND DEWANGAN VS. ORIENTAL INSURANCE COMPANY LIMITED [REFERRED TO]
SAGAR PANDURANG DHUNDARE VS. KESHAV ABA PATIL & ORS. [REFERRED TO]
DELHI METRO RAIL CORPORATION LTD VS. TARUN PAL SINGH & ORS [REFERRED TO]
GAURAV ASEEM AVTEJ VS. U P STATE SUGAR CORPORATION LTD & ORS [REFERRED TO]
COMMISSIONER OF CUSTOMS (IMPORT), MUMBAI VS. DILIP KUMAR AND COMPANY [REFERRED TO]
SHILPA MITTAL VS. STATE OF NCT OF DELHI [REFERRED TO]



Cited Judgements :-

REGU MAHESWARA RAO VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2021-10-21] [REFERRED TO]


JUDGEMENT

J.K. Maheshwari, C.J. - (1.)As the issue involved in all these petitions is common and the proceedings impugned therein are one and the same, they are heard together and are being decided by this common order.
(2.)All the above writ petitions have been filed challenging the Ordinance No.5 of 2020 i.e., Andhra Pradesh Panchayat Raj (Second Amendment) Ordinance, 2020 (for short, 'the impugned Ordinance') dated 10.04.2020, promulgated by the Governor of Andhra Pradesh, substituting Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994 (for short, 'the APPR Act'); G.O.Ms.No.617 Panchayat Raj and Rural Development (E & R) Department, dated 10.04.2020 has also been assailed, by which the Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service, Tenure of State Election Commissioner) Rules, 2020 (for short, 'the New Rules, 2020') were notified replacing the existing Andhra Pradesh Panchayat Raj (Salaries and Allowances and Conditions of Service of State Election Commissioner) Rules, 1994 (for short, 'the Old Rules, 1994'). The consequential notification in G.O.Ms.No.618, Panchayat Raj and Rural Development (E & R) Department, dated 10.04.2020, directing that the incumbent State Election Commissioner (for short, 'the SEC') Dr. N. Ramesh Kumar, (hereinafter referred to as, 'Mr.A') ceases to hold the office prior to completion of the tenure, and another G.O.Ms.No.619, Panchayat Raj and Rural Development (E & R) Department, dated 11.4.2020, appointing Justice V. Kanagaraj (hereinafter referred to as, Mr.B'), Retired Judge of the High Court of Madras, as SEC of Andhra Pradesh, for a period of three years from the date of assumption of office, in consequence to cessation of office by Mr.A have also been assailed. The facts and averments in the respective writ petitions pleaded to challenge those notifications are referred in succeeding paragraphs.
FACTS IN THE RESPECTIVE WRIT PETITIONS:

(3.)W.P.No.8163 of 2020:
3.1. This writ petition has been filed by Mr.A, who was holding the post of the SEC of the State of Andhra Pradesh challenging the above proceedings on the ground that they are illegal, manifestly arbitrary and unconstitutional. A consequential prayer has also been made to declare that the petitioner be entitled to serve as the SEC of Andhra Pradesh for the remainder tenure because his appointment was for a period of five years from the date of assuming the office, i.e., 01.04.2016.

3.2. The petitioner averred in the petition that he holds M.A. & Ph.D. in Economics and also LL.B. Degree from Osmania University. He had served the Governor of Andhra Pradesh and Telangana approximately for 7 years as Principal Secretary and later as Special Chief Secretary, prior to assuming the office of the SEC of Andhra Pradesh. He had held important posts as Secretary of various Departments in the State Government. He assumed the office of the SEC of Andhra Pradesh with effect from 01.04.2016 for a tenure of five years, in pursuance to the G.O.Ms.No.11 dated 30.01.2016.

3.3. It is stated that after consultation with the State Government, elections to the local bodies, such as Panchayats and Municipal bodies, in the State were notified by the State Election Commission and accordingly, schedule for filing nominations, conduct of polls, declaration of results etc. was issued, starting the process of election with effect from 07.03.2020. While issuing the Notification for elections, the State Government assured to provide requisite security forces to safeguard against possible poll violence. After issuance of the election Notification and on completion of first stage of election, all the opposition parties have alleged in both print and electronic media that the electoral process had witnessed unprecedented violence and intimidation by the candidates belonging to the ruling party with the active connivance of the police personnel. It is alleged that 35 incidents of prevention of nominations, 23 incidents of forcible withdrawals and 55 instances of violence targeting the candidates, members and supporters of the opposition parties, i.e. Telugu Desam party and Bharatiya Janata Party-Janasena combined, were reported.

3.4. While the State Election Commission was actively deliberating stringent measures to check the unabated violence, the nation was struck with the Novel Corona Virus (COVID-19) pandemic with rising number of infected persons and in furtherance to the advisory issued by the World Health Organization on 11.03.2020, the petitioner issued notification dated 15.03.2020, postponing the elections of the local bodies for six weeks or to any other date. It is stated that in some other States also, i.e., Maharashtra, West Bengal and Orissa, a decision was taken to postpone the elections of the Panchayats and Municipalities. The said decision of the petitioner to postpone the local body election on account of the outbreak of COVID-19 came to a lot of adverse criticism by the members of the ruling party. A press conference was convened on the very same day and several derogatory remarks and allegations were made against the petitioner in the live press conference by the Chief Minister of the State, in which he expressed his dissent and opposition towards the appointment of the petitioner as the SEC of Andhra Pradesh.

3.5. It is further pleaded that being aggrieved by the decision of the State Election Commission to postpone the election, the State Government filed Writ Petition (Civil) No.437 of 2020 before Hon'ble the Supreme Court, which was decided vide order dated 18.03.2020, refusing to interfere with the decision of the State Election Commission with a further observation that the Commission shall consult the State Government before notifying the election in future and the Model Code of Conduct for the elections shall be re-imposed four weeks before the date of polling.

3.6. It is further stated that as many as 200 countries in the world have taken stringent measures and have gone into complete or partial lockdown after COVID-19 situation, combating the health emergency. The States/Provinces in India have closed their respective State borders and have imposed curfew under Section 144 Cr.P.C. prohibiting free movement of people making the life standstill. In the said situation of disaster management, the Central Government as well as the State Governments are busy in taking measures to cope up with the public health issues, diverting all State mechanism towards health services and supply of essential commodities. In that course, police personnel, health and sanitary workers are completely engaged to render their services and all other departmental functionaries have stopped functioning and they are only rendering the essential services in the field of health, food and civil supplies, public administration and sanitisation. In such situation, the State Government, with unseemly haste and secrecy, proceeded to bring amendment to Section 200 of the APPR Act, by way of the impugned Ordinance, only with intent to remove the petitioner from the office of the SEC. It is alleged that copy of the Ordinance has been uploaded on the website belatedly, although GOs were uploaded and they were categorised as confidential, making the contents invisible for a long time.

3.7. It is further stated that the promulgation of the impugned Ordinance would amount to exercise of legitimate power to achieve the illegitimate object of removing the petitioner from the office of SEC and to appoint another SEC of their choice. It is stated that there is no emergent situation warranting immediate action by the Governor to promulgate the impugned Ordinance during the lockdown of the nation due to COVID-19 and after notifying the elections of the Panchayats and Municipalities. It is further stated that there was no objective basis for the legislative changes although media and the State Government claim that it is part of legislative reforms.

3.8. It is also stated that the petitioner, in his official capacity as SEC, found it necessary to transfer two District Collectors, Superintendents of Police, Deputy Superintendents of Police and Circle Inspectors and suspend one Circle Inspector of Police from service, as they were affecting the free and fairness in the electoral process. But, the State Government has not acted on a single corrective measure. It is further stated that the media had widely captured the incidents of misuse of the benefits extended on account of COVID-19 by the ruling party contestants by canvassing while distributing those benefits and inducing voters, in violation of the norms. Upon major opposition groups bringing those incidents to his notice, the petitioner, being the SEC, had instructed the District Collectors and Election Observers to act firmly and send immediate reports on matters which require attention. Thus, it is urged that the petitioner was committed to hold free and fair elections in the State against wishes of ruling YSRC party.

3.9. Further, it is averred that the Governor has exercised the power to make the Ordinance, without there being any emergent situation, requiring immediate steps to issue such Ordinance as contemplated under Article 213 of the Constitution of India, 1950 (hereinafter referred to as, 'the Constitution'). It is further stated that the appointment of the petitioner as SEC was for a period of five years from the date of assuming his office, which cannot be curtailed in view of the provisions contained under Article 243K(2) of the Constitution, more particularly, the proviso thereto, without following the procedure contemplated for removal at par to the Judge of High Court by way of impeachment. Thus, issuance of the impugned Ordinance, which was made applicable at once, bringing amendment to Section 200 of the APPR Act, to cease the holding of office by Mr.A and to appoint Mr.B, is colourable exercise of power, unconstitutional and impermissible.

3.10. In view of the above, it is prayed that the impugned Ordinance, which was introduced only with an oblique intention to remove the petitioner from the post of SEC, may be quashed and in consequence thereto, the subsequent notifications, vide G.O.Ms.No.617 dated 10.04.2020, G.O.Ms.No.618 dated 10.04.2020 and G.O.Ms.No.619 dated 11.04.2020, may also be quashed, with a further direction to continue the petitioner to hold the office of the SEC till completion of the prescribed tenure of five years as per G.O.Ms.No.11 dated 30.01.2016.

3.11. The petitioner has also prayed for interim relief, by filing four interlocutory applications, viz., I.A.No.1 of 2020 seeking stay of all further proceedings pursuant to the impugned Ordinance; I.A.No.2 of 2020 seeking suspension of the operation of G.O.Ms.No.617 dated 10.04.2020; I.A.No.3 of 2020 seeking suspension of the operation of G.O.Ms.No.618 dated 10.04.2020, and I.A.No.4 of 2020 seeking suspension of the operation of G.O.Ms.No.619 dated 11.04.2020.

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