S MALAICHAMY Vs. LT GOVERNOR

JUDGEMENT

(1.) Writ petition No.7859 of 2001 by S.Malaichamy a Serving IAS Officer, who was already holding the post of Managing Director, Delhi Khadi and Village Industries Board, was given the additional charge of the Election Commissioner for the National Capital Territory of Delhi till further order in terms of Notification (Annexure-P.1) dated 12.1.2001, primarily is to challenge the order (Annexure-P.5) dated 13.12.2001 issued by the Lt.Governor by which Shri M.P.Tyagi, a retired IAS Officer has been appointed as the Election Commissioner for Delhi and simultaneous therewith the assignment of the petitioner to hold additional charge of election Commissioner, has been brought to an end. The prayers made in the writ petition filed under Article 226 of the Constitution of India are :-

(2.) The connected writ petition No.7692 of 2001 is another similar petition filed as PIL by Shri Jai Kishan, a former MLA and General Secretary of one of the political parties raising the same issues.

(3.) Primarily, the contention of Shri L.R.Gupta, learned Senior Advocate, appearing for S.Malaichamy is that the appointment of Election Commissioner for Delhi is governed by the Delhi Municipal Corporation Act, 1957 (Act No.66 of 1957) (hereinafter called "the DMC Act") and the Election Commissioner of N.C.T. of Delhi (Condition of Service and Tenure of Office) Rules, 1973 (hereinafter called "the Rubles"), which prescribe three years tenure and the same statutory provisions stipulate against removal other than in the manner prescribed for removal of a Judge of the High Court. Therefore, according to Shri L.R.Gupta, once S.Malaichamy was found fit to hold the additional charge of Election Commissioner and was directed to hold such charge With the approval of the Lt.Governor, who is comoetent authority under the Act and thereafter not only statutory notification (annexure-F'.1) specifically citing Section 7 of the D.M.C.Act was issued but was fully acted upon in numerous manners and occasions to the knowledge and direct dealings of all including the Lt.Governor himself, as such the appointment even though by way of additional charge and till further orders should be read down in the manner that the additional nature of the charge and the indefinite nature of the duration (which was "till further orders") should stand substituted by the position mandated under Section 7 of the D.M.C.Act and the Rules viz. appointment for three years and no removal except in the manner applicable to a Judge of the High Court.