AJIT SINGHversusCHIEF ELECTION COMMISSIONER OF INDIA & ORS.

                               AJIT SINGH
                                                                                A
                                     v.
   CHIEF ELECTION COMMISSIONER OF INDIA & ORS.

                         SEPTEMBER 26, 1989

     [K. JAGANNATH SHETTY AND A.M. AHMADI, JJ.]                                 B

     Election Commission (Recruitment of Staff) Rules, 1974-
Appointment of Private Secretary to Chief Election Commissioner-
Choice left to Chief Election Commissioner-Whether valid and legal-
Consultation with U. P. S. C. not necessary after 1979 amendment to
Rules.
                                                                                c
      The appellant was working as Private Secretary to the Depnty
Election Commissioner until July 26, 1977 when the Deputy.Election
Officer under he whom was working relinquished his charge.

      One Tilak Raj who was working as Private Secretary to Chief               D
Election Commissioner was promoted as Under Secretary. In order to
fill the vacancy caused by his promotion, Respondent No. 2 M.L.
Sarad, was appointed to the said post w.e.f. September 1, 1979. The
appellant made a representation complaining that the said appointment
was contrary to the Election Commission (Recruitment of Staff) Rules,
which was rejected on the ground that he was not eligible for appoint-          E
ment to the said post. Thereupon, the appellant filed a Writ Petition
challenging the notification dated 23. IO. 79 appointing the said M.L.
Sarad as Private Secretary. During the pendency of the Writ Petition
the Commission under due intimation to the Court amended the 1974
Rules as a result of which entry at serial No. 9 relating to the Post of P.S.
to Chief Election Commissioner was omitted. The appellant was                   F .
informed by the Commission that it bad withdrawn the Memo of
October 26; 1979 wherein it was stated that the appellant was not eligi-
ble for appointment to the post in question. The Court took due notice
of .the amendment but held that the Writ Petition survived since the
appellant was not considered for appointment to the post w.e.f. 1.9. 79.
                                                                                G
      The appellant contended before the High Court that (i) the entire
exercise culminating in the amendment of the Rules was mala fide; (ii)
     "' amendment conferred arbitrary and unfettered power on the
that the
Chief Election Commissioner to appoint any person as his Private Sec-
retary; (iii) that in case the appellant had been appoited to the post on
1.9.79, subsequent amendment of the Rules would not have operated               H
                                    249
    250          SUPREME COURT REPORTS                  [1989] Supp. I S.C.R.

    retrospectively to his detriment and he would have continued.
A
          The High Court came to the conclusion that the 1979 Rules were
    not ma/a fide nor were they arbitrary and that since the memo of
    26.10. 79 was withdrawn, the appellant was entitled to be considered for
    appointment to the post in question w.e.f. 1.9.79. Accordingly the High
B   Court directed the class II Departmental Promotion Committee to con-
    sider the case of the appellant to the post in question w.e.f. I.9.79. It
    further ordered that if the appellant is selected for appointment to the
    said post, his appointment will be deemed to have been made on ad hoc
    basis from 1.9. 79 to December 14, 1979 after which 1979 Rules came
    into operation. Monetary benefits were also directed to be paid to the
    appellant.
c
         The appellant being dissatisfied with the aforesaid order prefer-
    red Letters Patent Appeal which was summarily rejected on 24. 7.80.
    The appellant has, therefore, appealed to this Court after obtaining
    &pecial Leave.
D    '
          Dismissing the appeal, this Court,

           HELD: Article 324 confers the power of superintendence, direc-
    tion and control of elections in the Chief Election Commissioner. Free
    and fair elections are the basic postulates. of any democratic system. A
E   duty is cast on the Chief Election Commissioner to ensure free and fair
    elections. This makes the post of Chief Election Commissioner a sensi-
    tive one. The Chief Election Commissioner has to deal with several
    matters which are brought before him by political parties as well as the
    Government. His office is called upon to handle correspondence which
    require a high degree of secrecy and confidentiality. He would naturally
F   require the services of his Private Secretary for handling such secret
    and confidential mes and correspondence. Integrity, honesty and com-
    petence are the basic hallmarks for the said post. In addition, he must
    be a person in whom the Chief Election Commissioner has absolute
    trust and faith. It is for this reason that the tenure of the post is made
    co-terminus with the tenure of the Chief Election Commissioner. That
G   is for the obvious reason that a man chosen by the predecessor may not
    be enjoying the same degree of confidence of bis successor. He may like
    to have his own man of confidence to attend to bis secretarial work. It is,
    therefore, not without reason that the choice of personnel to the post of Pri-
    vate Secretary is left to the Chief Election Commissioner himself. [2SSE-G I

H         Since consultation with the U.P.S.C. was not necessary after the
        AJIT SINGH v. CHIEF ELECl'ION COMMR. [AHMADI, J.]           251

amendment introduction by the 1979 Rules, the Chief Election Commis-       A
sioner was entitled to choose the man of his confidence as Private Sec-
retary. The choice of Respondent No. 2 to the post cannot, therefore, be
questioned. [256CJ

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2653
of 1980.                                                                   B

     From the Judgment and Order dated 24.7 .1980 of the Delhi High
Court in L.P.A. No. 113 of 1980.

      V.M. Tarkunde, A.B. Lal and V.N. Ganpule for the Appellant.

     T.S.K. Iyer and Ms. A. Subhashini for the Respondents.
                                                                           c
     The Judgment of the Court was delivered by

      AHMADI, J. The appellant Ajit Singh was appointed as Grade
II Stenographer on February 2, 1953 and was promoted to the post of        D
Senior Personal Assistant w.e.f. April 1, 1970. On January 4, 1974 he
was further promoted to the post of Private Secretary to the Deputy
Election Commissioner in which capacity he worked till July 26, 1977
when the Deputy Election Commissioner under whom he was working
relinquished charge of office.
                                                                           E
       The first respondent is the Chief Election Commissioner. One
Tilak Raj was the Private Secretary to the first respondent. On the said
Tilak Raj being promoted as Under Secretary, the post of Private Sec-
retary to the Chief Election Commissioner fell vacant and it was not
filled in forthwith. However, by an order dated October 23, 1979
respondent No. 2 M.L. Sarad was appointed to the same post w.e.f.          F
September 1, 1979. On learning about the appointment of respondent
No. 2 to the said post the appellant complained that the said appoint-
ment was contrary to the Election Commission (Recruitment of Staff)
Rules, 1974 (hereinafter called 'the 1974 Rules'). The appellant's rep-
resentation was rejected on the ground that he was not eligible for
appointment to the post in question.                                       G

     The appellant then filed a Civil Writ Petition No. 1583 of 1979 in
the High Court of Delhi challenging the notification dated October 23,
1979 appointing M.L. Sarad to officiate as Private Secretary to the
Chief Election Commissioner w.e.f. September 1, 1979 as well as the
Memorandum dated October 26, 1979 informing him that he was                H
      252         SUPREME COURT REPORTS               [1989] Supp. 1 S.C.R.

A     eligible for appointment to the said post. During the pendency of this
      writ petition it was disclosed to the Court that the Commission pro-
      posed to make suitable changes in the 1974 Rules insofar as appoint-
      ment to the post of Private Secretary to the Chief Election Commis-
      sioner was concerned. The leave of the Court was sought to amend the
      1974 Rules. It was also disclosed that the Commission proposed to
B     withdraw the order of October 23, 1979 appointing M.L. Sarad as
      Private Secretary to the Chief Election Commissioner. The Court
      granted leave to the Commission to amend the 1974 Rules. By the
      notification dated December 3, 1979 earlier notification of October 23,
      1979 appointing M.L. Sarad as officiating Privat~ Secretary to the
      Chief Election Commissioner was withdrawn. The 1974 Rules were
C     amended by notification dated December 10, 1979 by the President in
      exercise of the power conferred by the proviso to Article 309 of the
      Constitution of India. By the said amendment entry at serial No. 9
      relating to the post of the Private Secretary to Chief Election Commis-
      sioner and the entries relating thereto came to be omitted. The respon-
      dent No. 1 brought these two changes to the Court's notice by an
II>   application dated December 21, 1979. Thereupon, the appellant
      sought leave to amend the memo of his writ petition. The Commission
      also informed the appellant by its communication dated January 17,
      1980 that it had withdrawn its earlier memorandum of October 26,
      1979 whereby it was stated that the appellant was not eligible for
      appointment to the said post. The Court took notice of these facts but
IE    thought that the writ petition survived, since the appellant was not
      considered for appointment to the post in question w.e.f. September
       1, 1979. Besides the appellant also challenged the Election Commis-
      sion (Recruitment of Staff) Amendment Rules, 1979 (hereinafter cal-
      led 'the 1979 Rules') by which entry at serial No. 9 came to be omitted.
      The contention of the appelllant was that the entire exercise culminat-
11    ing in the amendment of 1974 Rues was mala fide and was undertaken
      with the sole purpose of depriving him of appointment to the said post.
      It may here be mentioned that after the 1979 Rules came into force
      respondent No. 2 was re-appointed to the same post by notification
      dated February 27, 1980 w.e.f. the previous day. It was contended that
      the 1979 Rules had the effect of conferring an absolute discretion on
G     the Chief Election Commissioner to appoint any person of his choice
      to the post in question. To put it differently the appellant contended
      that the amendment conferred arbitrary and unfettered power on the
      Chief Election Commissioner to appoint any person he deemed fit as
      his Private Secretary regardless of his qualification. It was further
      contended before us by the learned counsel for the appellant that if the
J-l   appellant had been appointed to the post in question on September 1,
            AJIT SINGH v. CHIEF ELECTION COMMR. [AHMADI, J .]           253

1979 the subsequent amendment of the Rules would not have operated
                                                                              A
retrospectively to his detriment and he would have continued as Pri-
vate Secretary even after the amendment.
'
      A learned Single Judge of the High Court came to the conclusion
that the 1979 Rules were not ma/a fide nor were they arbitrary as
alleged by the appellant. The High Court also came to the conclusion B
that since the memorandum of October 26, 1979 was withdrawn the
appellant was entitled to be considered for appointment to the post of
Private Secretary w.e.f. September 1, 1979. The High Court, there-
fore; directed Class II Departmental Promotion Committee to con-
sider the case of the appellant for appointment to the post of Private
Secretary to the Chief Election Commissioner w.e.f. September l,
1979. It ordered ihat if the appellant is selected for appointment by
                                                                       c
promotion to the said post his appointment will be deemed to have
been made on ad-hoc basis from September 1, 1979 to December 14,
1979 after which the 1979 Rules came into force. Monetary benefits
due to the appellant on such appointment were ordered to be
calculated and paid. The appellant feeling aggrieved by this order D
preferred an appeal, LP.A. No. 113 of 1980, before a Division Bench
of the same High Court. This Letters Patent Appeal was summarily
dismissed on July 24, 1980. Feeling aggrieved by the said order the
petitioner approached this Court and secured special leave under Arti-
cle 136 of the Constitution.
                                                                              E
          ML Tarkunde, the learned counsel for the appelant, reiterated
    the same contentions which were convassed before the learned Single
    Judge of the High Court and added that if the appellant was appointed
    w.e.f. September 1, 1979, the subsequent amendment of the Rules
    would not have stood in his way and he would have continued as
    Private Secretary to the Chief Election Commissioner even after the F
    amendment of the said Rules. He, therefore, contended that the High
    Court was not right in limiting the relief in regard to the appellant's
    appointment upto December 14, 1979 i.e. till the 1979 Rules came into
    force. It may at this stage be pointed out that pursuant to the order of
    the High Court directing the Class II Departmental Promotion Com-
    mittee to consider the case of the appellant for appointment to the post G
    of Private Secretary w.e.f. September 1, 1979, the said Committee met
    on May 9, 1980 and considered the case of all eligible persons for
    appointment to the post in question w.e.f. September 1; 1979. The
    Departmental Promotion Committee did not find anyone suitable.for
    appointment to the said post. Intimation in that behalf was given to tl;le ·
    appellant bv the memorandum of May 14, 1%0. This decision_of the H
    254         SUPREME COURT REPORTS              [1989] Supp. 1 S.C.R.

A Departmental Promotion Committee sets at rest the argument that the
  appellant would have continued as Private Secretary had he been
  appointed to the said post w.e.f. September 1, 1979.

        Mr. Tarkunde, the learned counsel for the appellant, rightly did
  not seriously contend before us that the 1979 Rules were mala fide and
B were made solely with a view to deny appointment to the appellant as
  Private Secretary to the Chief Election Commissioner. It must be
  realised that in reply to the proposal to amend the extent rules the
  Ministry of Law, Justice and Company Affairs, in consultation with
  the Department of Personnel and Administrative Reforms, wrote to
  the Commission on December 5, 1974 as under:
c              ''The post of Private Secretary to the Chief Election Com-
               missioner is borne on the personal staff of the Chief Elec-
               tion Commissioner and appointment thereto is outside the
               purview of the U .P .S.C. vide entry 5 of Schedule to the
               Union Public Service Commission (Exemption from con-
D              sultation) Regulations 1958. The appointment of a person
               thereto may be made by the Chief Election Commissioner
               at his discretion without the consultation of the Union
               Public Service Commission. The appointment to the post of
               Private Secretary to the Chief Election Commissioner is
               also co-terminus with the appointment of Chief Election
E              Commissioner. In view of this position, the Department of
               Personnel and Administrative Reforms have advised that
               the Recruitment Rules for the post of Private Secretary to
               the Chief Election Commissioner need not be made. The
               Rules for the post as proposed by the Commission have
               therefore not been notified."
F
    After the amendment of the 1974 Rules the Commission issued .an
    office order dated February 18, 1980 stating that appointment to the
    post of Private Secretary shall be made 'in the absolute discretion of
    the Chief Election Commissioner' from amongst persons of suitable
    class or category serving in the Commission or from outside, as he may
G   deem fit. The words 'in the absolute discretion of the Chief Election
    Commissioner' were construed by counsel to mean that arbitrary and
    unfettered power was conferred to the Chief Election Commissioner in
    the matter of choice of his Private Secretary. The office order further
    stated that the appointment of the incumbent to the said post 'shall be
    co-terminus with the incumbency in the post of the Chief Election
H   Commissioner'. This order shows that after the amendment of the
         AJJT SINGH v. CHIEF ELECTION COMMR. [AHMADI, J.]            255

1974 Rules the matter in regard to the choice of personnel for the post
                                                                           A
of Private Secretary to the Chief Election Commissioner was left to the
sole discretion of the Chief Election Commissioner.

      It will appear from the above developments that, the proposal for
the amendment of the relevant recruitment Rules was moved way back
in July 1970. The advice given by the Law Ministry by their communi-       B
cation of December 5, 1974 was ultimately accepted by the Commis-
sion. By the letter of March 19, 1975, the Law Ministry, however,
informed the Commission that the Commission's proposal would be
considered at the time of change in the incumbency in the post of the
Chief Election Commissioner. That was why the process of amend-
ment of the 1974 Rules was delayed until December 1979. The incum-
bent to the post of Chief Election Commissioner at all material times      c
had, therefore, nothing to do with the proposal to amend the recruit-
ment rules. It was, therefore, impossible to contend that respondent
No. l's action was ma/a fide and was actuated with the sole desire to
deny promotion to the appellant to the post of Private Secretary to the
Chief Election Commissioner.                                               D

       Coming to the next limb of attack it must be realised that in a
democratic republic like ours the office of the Chief Election Commis-
sioner is of vital 'importance. Article 324 confers the power of
superintendence, direction and control of elections in the Chief Elec-
tion Commissioner. Free an.ct fair elections are the basic postulates of   E
any democratic order. A duty is cast on the Chief Election Commis-
sioner to ensure free and fair elections. This makes the post of the
Chief Election Commissioner a sensitive one. The Chief Election
Commissioner has to deal with several matters which are brought be-
fore him by political parties as well as the Government. His office is
called upon to handle correspondence which require a high degree of        F
secrecy and confidentiality. He would naturally require the services of
his Private Secretary for handling such highly secret and confidential
files and correspondence. It is, therefore, imperative that the person
working as Private Secretary to the Chief Election Commissioner must
be one in whom implicit faith and confidence can be placed. He must
be a man of impeccable character and integrity, besides being compe-       G
tent in secretarial work. Integrity, honesty and competence are the
basic hallmarks for the post. In addition, he must be a person in whom
the Chief Election Commissioner has absolute trust and faith. It is for
this reason that the tenure of the post is made co-terminus with the
tenure of the Chief Election Commissioner. That is for the obvious
reason. that a man chosen by the predecessor may not be enjoying the       H
    256         SUPREME COURT REPORTS                l1989] Supp. 1 S.C.R.

A same degree of confidence of his successor. He may like to have his
     own man of confidence to attend of his secretarial work. It is, there-
     fore, not without reason that the choice of personnel to the post of
     Private Secretary is left to the Chief Election Commissioner himself.
     This is nothing new. Similar provision is made for certain other func-
B tionaries as can be seen from the Home Department's Notification
     dated 1st September, 1958 as amended from time to time. We are,
     therefore, of the opinion that having regard to the special needs of the
     post it was imperative to leave the matter of choice of personnel in the
     absolute discretion of the Chief Election Commissioner. We, there-
     fore, do not think that the office order of February 18, 1980 can be
     struck down. The High Court was, therefore, right in limiting the relief
q: upto December 14, 1979 i.e. till the 1974 Rules became effective.
     Since consultation with the U.P.S.C. was not necessary after the
     amendment introduced by the 1979 Rules, the Chief Election Commis-
   . sioner was entitled to choose the man of his confidence as Private
     Secretary. The choice of respodent No. 2 to the post cannot, there-
D fore, be questioned.

          In view of the above, we do not see any merit in the contentions
    urged before us by the learned counsel for the appellant. We, there-
    fore, dismiss this appeal but in the facts and circumstances of the case
    leave the parties to bear their own costs.

E   Y.Lal                                                 Appeal dismissed.