S S DHANOA Vs. UNION OF INDIA

JUDGEMENT

(1.) On 7th October, 1989, by a notification issued in exercise of The powers conferred by Cl. (2) of Art. 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 subsequent 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 notification issued in exercise of the powers conferred by Cl. (5) of Art. 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 l st 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 and another rescinding with immdiate effect, the notification of 16th October, 1989 by which the appointment of the petitioner and Shri V. S. Seigell was made. It is these two notifications of 1 st 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 Art. 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 Ist January, 1990 is illegal. Secondly, it is urged that the Election Commission is an independent body and its independence 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 thereby abolishing the posts 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 mala fide under the advice of the Chief Election Commissioner with the sole objet of getting rid of the petitioner and the other Election Commissioner because the Chief Election Commissioner was from the beginning illdisposed towards the creation of the posts Of the Election Commissioners. It is also alleged that there were differences 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 distinguished 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 subjecting him-to severe 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.