Andhra HC (Pre-Telangana)
Panchumarthi Anuradha vs Government Of Andhra Pradesh And Ors. on 7 December, 2001
Equivalent citations: 2002(1)ALD317, 2001(6)ALT610, 2002 A I H C 2476, (2002) 1 ANDHLD 317 (2001) 6 ANDH LT 610, (2001) 6 ANDH LT 610
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The petitioner in the instant writ petition prays for issuance of a writ of Mandamus declaring G.O. Ms. No.273, M.A., Municipal Administration and Urban Development (Elc.II) Department, dated 8-5-2000 appointing Sri P. Rangaiah, retired District and Sessions Judge as the Election Tribunal for a period of one year and G.O. Ms, No. 151, M.A., Municipal Administration and Urban Development (Elec.II) Department, dated 21-4-2001 extending the term upto 31-12-2001 or till the necessity ceases, whichever is earlier, as illegal and void. The petitioner also prays for a consequential declaration declaring the judgment dated 26-7-2001 in Election Petition No. l of 2000 on the file of the Election Tribunal as illegal and void.
2. Before adverting to the question as to the validity of the impugned Order issued by the State Government appointing the second respondent herein as the Election Tribunal, it is necessary to notice the relevant facts leading to filing of this writ petition.
3. The Government of Andhra Pradesh in exercise of the powers conferred under Section 75 (1) of the Hyderabad Municipal Corporation Act, 1955 (for short 'the Act') appointed the second respondent herein (retired District and Sessions Judge of the A.P. State Higher Judicial Services) as the Election Tribunal for a period of one year for the trial of election petitions in respect of the elections held to the Municipal Corporations of Visakhapatnam, Vjjayawada, Guntur, Kurnool, Warangal and also Municipal Corporations of Hyderabad and Rajahmundry in respect of which the elections are proposed to be held. The decision of the Government is reflected in G.O. Ms. No. 273, MA., Municipal Administration and Urban Development (Elec. II) Department, dated 8-5-2000. By subsequent G.O. Ms. No. 151, MA. Municipal Administration and Urban Development (Elec. II) Department, dated 21-4-2001 the term of the second respondent was extended upto 31-12-2001 or till the necessity ceases.
4. It is the case of the petitioner that the Government has no power or jurisdiction to appoint the second respondent herein as the Election Tribunal by the impugned order dated 8-5-2000 as he was not a Judge of a High Court or has been a Judge of a High Court or was eligible to be appointed as a Judge of a High Court. It is stated that the second respondent herein had retired from the service as District and Sessions Judge on 30-6-1991 itself on attaining the age of superannuation of 58 years. As on the date of his appointment as Election Tribunal, he was aged 66 years and 10 months.
5. It is the case of the petitioner that under Article 217(1) of the Constitution of India, a Judge of a High Court shall hold the office until he attains the age of 62 years. The second respondent has completed 62 years of age even during the year 1995. Age being a criteria for eligibility, the second respondent who was aged 66 years 10 months as on the date of his appointment was not eligible to be appointed as a Judge of a High Court. Thus, according to the petitioner, the appointment of the second respondent herein as Election Tribunal is totally illegal and void. The second respondent cannot continued to function as the Election Tribunal.
6. It is also necessary to notice as to why and under what circumstances; the petitioner had chosen to question the very appointment of the second respondent as Election Tribunal.
7. The petitioner and respondents 4 to 10 herein have contested the election to the office of the Mayor, Vijayawada Municipal Corporation held on 9-3-2000. The petitioner was declared as duly elected as the Mayor with a majority of 6590 votes. The 4th respondent herein filed Election Petition No. l of 2000 on 8-5-2000 before the Election Tribunal for Municipal Corporations constituted under Section 75(1) of the Act.
8. The Election Tribunal by its judgment dated 26-7-2001 in Election Petition No. 1 of 2000 ordered recount of votes polled for the Mayor's office at two counting centres, that is to say, at DRR. Indoor Stadium,' Bandar Road, Vijayawada and old Council Hall. The details of the directions and the judgment rendered by the Election Tribunal need not be noticed in this writ petition, as the validity of the said judgment is the subject-matter in WP No.l6606 of 2001.
9. The petitioner in this writ petition challenges the very appointment of the Election Tribunal and consequently prays for appropriate directions to set aside the judgment on the ground that the functioning of the second respondent as the Election Tribunal itself is illegal and void.
10. The short question that falls for consideration is as to whether the impugned order of the State Government appointing the second respondent herein as the Election Tribunal suffers from any legal infirmity? Whether the second respondent is not eligible to be appointed as the Election Tribunal?
11. It is required to notice the Section 75 of the Act, which reads as under:
75, Election Tribunal:--(1) The Government may, for the purpose of providing speedy disposal of election petitions in respect of an election under this Act, appoint any person who is or has been or is eligible to be appointed as a Judge of the High Court as an Election Tribunal (hereinafter referred to as the "Tribunal") for such period as may be necessary, for trial of petitions in respect of an election under this Act:
Provided that if there are only a limited number of such cases, the Government may, with the concurrence of the Chief Justice of the High Court, by notification specify a Court of District Judge to be an Election Tribunal to try the election petitions under this Act.
(2) The Tribunal shall deal with such petitions and proceedings in connection therewith in the manner prescribed.
12. Sri E. Manohar, learned senior Counsel appearing on behalf of the petitioner contends that the second respondent herein who was aged about 66 years and 10 months on the date of the appointment was not eligible to be appointed as a Judge of a High Court and, therefore, not qualified to be appointed as the Election Tribunal. Admittedly, the second respondent herein was not a Judge of a High Court or has been a Judge of a High Court.
13. The only question that falls for consideration is as to whether the second respondent herein was eligible to be appointed as the Election Tribunal?
14. The answer will depend on the question whether the second respondent was then qualified for appointment as a Judge of a High Court. To consider the said question, the constitutional provision bearing on this point, viz., Article 217 of the Constitution of India may have to be noticed.
Article 217(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment, of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years:
Provided that-
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court; or
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.
(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and-
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;
Explanation :--For the purposes of this clause-
(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State requiring special knowledge of law;
(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;
(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.
(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.
15. It is required to notice that Article 217(2) of the Constitution of India prescribes the qualifications for appointment as a Judge of a High Court while Article 217(1) of the Constitution of India lays down that a Judge of a High Court shall hold the office until he attains the age of 62 years. The scope of the two clauses of Article 217 of the Constitution of India and their inter-relation came up for consideration before the Supreme Court in A.C. Industries Limited v. Their Workmen, . Justice Venkatarama Aiyer speaking for the Constitutional Bench observed:
"While Article 217(2) prescribes the qualifications for appointment as a Judge, Article 217(1) lays down that the Judge shall hold office until he attains the age of sixty years. The whole of the controversy before us is as to the inter-relation between these two clauses. The contention of Mr. Pathak, learned Counsel for the appellant, is that though Article 217 (1) refers, in terms, to the termination of the office of Judge, in substance, it lays down a qualification for appointment, because the appointment of a person over sixty as a Judge would clearly be repugnant to Article 217 (1) even though he might satisfy all the requirements of Article 217 (2). It is accordingly argued that it is an implied qualification for appointment as a Judge under Article 217 that the person should not have attained the age of sixty at the time of the appointment.
We agree that there is implicit in Article 217(1) a prohibition against appointment as a Judge of a person who has attained the age of sixty years. But, in our view, that is in the nature of a condition governing the appointment to the office - not a qualification with reference to a person who is to be appointed thereto. There is manifest on the terms and on the scheme of the article a clear distinction between requirements as to the age of a person who could be appointed as a Judge and his fitness based on experience and ability to fill the office. Article 217 (3) deals with the former, and, in form, it has reference to the termination of the office and can therefore be properly read only as imposing, by implication, a restriction on making the appointment. In strong contrast to this is Article 217 (2) which expressly refers to the qualifications of the person to be appointed such as his having held a judicial post or having been an advocate for a period of not less than ten years. We think that on a true construction of the article the prescription as to age is a condition attached to the duration of the office and not a qualification for appointment to it."
16. It is thus clear that the prohibition against appointment as a Judge of a person who has attained the age of 62 years is in the nature of a condition governing the appointment to the office not a qualification with reference to a person who is to be appointed thereto. It is Article 217(2) of the Constitution of India, which expressly refers to the qualifications of the person to be appointed such as his having held a judicial post or having been an advocate for a period of not less than ten years. As held by the Supreme Court in categorical terms, the prescription as to the age is a condition attached to the duration of the office and not a qualification for appointment to it.
17. It is not in dispute that the second respondent herein as on the date of his appointment as Election Tribunal was qualified to be appointed as a Judge of a High Court.
18. In G.D. Karkare v. T.L Shevde, AIR 1952 Nag. 330, the question as to whether a person who has attained the age of 60 years could be appointed as an Advocate-General, if the age of a person is to be regarded as one of his qualifications came up for consideration. In the said case where a Judge who had retired at the age of sixty had been appointed as Advocate-General. The Nagpur High Court held that "clause (1) of Article 217 of the Constitution prescribes only the duration of the appointment of" a Judge of the High Court and could not be a construed as prescribing a qualification for his appointment.
19. We are, in the instant case, in reality, concerned with the interpretation of Section 75(1) of the Act. Section 75(1) provides for appointment of a High Court Judge sitting or retired as an Election Tribunal. Age is clearly not a qualification under Sub-section (1) of Section 75 of the Act. Age of a person for appointment under Sub-section (1) of Section 75 of the Act does not enter into his qualifications. Thus, it would be legitimate to construe subsection (1) of Section 75 of the Act as not importing any qualifications on the ground of age.
20. On a true and fair construction of Sub-section (1) of Section 75 of the Act, it has to be held that the second respondent herein as on the date of his appointment was qualified and eligible to be appointed as a Judge of a High Court. The expression "is eligible" to be appointed as a Judge of a High Court as an Election Tribunal would only mean "is legally qualified to be appointed as a Judge of a High Court". The question raised in this petition is not res integra, but squarely covered by an authoritative pronouncement of a Constitutional Bench of the Supreme Court in A.C. Industries Limited, (supra).
21. The contention urged is devoid of any merit. The appointment of the second respondent as the Election Tribunal to deal with the elections petitions and proceedings in respect of elections held under the provisions of the Act does not suffer from any legal infirmities. The impugned order of the State Government appointing the second respondent as the Election Tribunal is not vitiated on any ground whatsoever.
22. Alternative submissions were made by the learned Counsel for the 4m respondent contending that even if the appointment of the second respondent herein was invalid, the judgment pronounced by the second respondent would be protected by the de facto doctrine, since the act of the Tribunal de facto performed within the scope of the assumed officials authority is valid and binding as if it was the act of the Tribunal de jure. A number of authorities are pressed into service. !t is not necessary to burden this order with the said judgments referred by the learned Counsel during the course of submissions in view of the conclusion that the appointment of the second respondent is not vitiated for any reason. The Court need not dilate on the said issue as it has become an academic one.
23. For the aforesaid reasons, I do not find any merit in this writ petition. The same shall accordingly stand dismissed. There shall be no order as to costs.
24. The Court acknowledges the valuable assistance given by Sri Ramesh Ranganathan, learned Additional Advocate-General as amicus curiae at the request of the Court.