HC dismisses Puducherry Minister's PIL against Bedi's decision

In a setback to the Congress government in Puducherry, the Madras High Court on Thursday dismissed a PIL filed by a Minister challenging formulation of a selection process for appointment of the State Election Commissioner to the union territory by Lt Governor Kiran Bedi.

A bench comprising justices M Sathyanarayanan and R Hemalatha made it clear that appointment of retired IAS officer T M Balakrishnan as SEC pursuant to the resolution of the union territory assembly, though unanimous, had not been authenticated by the Administrator of the UT, the Lt Governor, and hence it was not made in accordance with law.

 

Such authentication was required in terms of Section 44 (1) of the Government of Union Territories Act, 1963 read with Pondicherry Authentication (Orders and Other Instruments) Rules, 1963, it said.

The judges had reserved orders on the petition on February 20 after conclusion of arguments by both sides.

The matter relates to the appointment of Balakrishannan as the SEC by the Puducherry Council of Ministers on May 25, 2018 for conduct of local body polls based on an assembly resolution.

The Lt Governor did not approve the appointment and in December last year quashed it as 'null and void ab initio' and formulated the scheme for filling the post and gave a newspaper advertisement calling for applications.

Challenging this, Local Administration Minister A Namassivayam moved the high court through a public interest litigation seeking to declare the LG's order as arbitrary and ultra vires of the Constitution.

He submitted that the file related to appointment of the SEC was forwarded to the Administrator on May 31, 2018 for her approval in compliance with the Business Rules.

However, she first directed that delimitation of wards in local bodies be carried out in terms of the order of the Supreme Court.

Accordingly, the delimitation process was carried out, a notification issued by a Government Order on March 7 last year and thereafter the file was once again forwarded to the L-G.

Bedi then said the decision of the Cabinet was not approved and went on to formulate the scheme for appointment of SEC by prescribing qualification for the post and set up a Selection Committee comprising the Chief Secretary, representatives from the Union Ministry of Home Affairs and Ministry of Panchayat Raj, he submitted.

He contended that the act of the Administrator was contrary to the existing rules in force as on date relating to the appointment of SEC.

The bench in its order said under Articles 239-A and 240 of the Constitution, the President was having power to make any regulation in certain Union Territories which include the Union Territory of Puducherry also.

"Parliament is also having plenary power to legislate for the Union territories with regard to any subject. The Union Territories are centrally administered through the President, acting through the Administrator. The general power of the President to make regulations extends to all matters on which Parliament can legislate," it said.

Admittedly, there were no Rules in place in the Election Commissioner of the Union Territory of Puducherrry (Conditions of Service and Tenure of Office) Rules, 1994 as to the qualification and manner of selection of SEC, the court said.

The Administrator by drawing inspiration from the Model State Commissioner (Conditions of Service) Bill as circulated by the Union Ministry of Panchayat Raj, thought it fit to go for selection of SEC in a transparent manner.

It held that the scheme adopted by the Administrator cannot be faulted with as it had been formulated after getting concurrence from the Union Home Ministry.

In terms of proviso to Section 44(1) of the Government of Union Territories Act, 1963, the administrator has discretionary powers to refer a matter to the President in case of difference of opinion.

In the light of the present factual situation, it was not difference of opinion and a reading of Section 44 of the act, as a whole, would show the administrators are vested with discretionary power, the bench added.