THE CONSTITUTIONAL POST OF S.E.C. HAS BEEN LYING VACANT SINCE PAST ONE YEAR, EVEN PREVIOUS CHARANJIT CHANNI LED CONG GOVT WAS COMPETENT TO FILL IT — ADVOCATE HEMANT KUMAR
CHANDIGARH – The appointment of new State Election Commissioner (SEC) in Punjab is under consideration of the State Government, a reply letter dated 1 Dec 2022 from Elections Department of State Government stated in response to a Legal Notice sent by an Advocate at Punjab & Haryana High Court, Hemant Kumar, who questioned the inordinate delay being witnessed in the appointment of new S.E.C., a constitutional post provided under Article(s) 243K and 243ZA of Constitution of India and also having statutory sanctity in the State under Punjab State Election Commission (PSEC) Act, 1994. but which has been lying vacant for the past one year. Meanwhile, the Chief Minister’s Office (CMO), Punjab on 30 Nov forwarded the aforesaid Legal Notice to Chief Electoral Officer (CEO), Punjab which on 1st Dec further transferred it to Office of S.E.C., Punjab.
Pertinent that last month, Arun Goel, an erstwhile Punjab Cadre IAS officer of 1985 batch assumed charge as (second) Election Commissioner (EC) in the Election Commission of India (ECI). Goel, who was on Central Deputation for the past decade and was otherwise scheduled to superannuate this month on Dec 31, however took Voluntary Retirement from IAS on Nov 18 and the very next day on Nov 19, he was appointed by the President of India to the coveted post of EC. The Supreme Court of India is also currently seized of the matter pertaining to Goel’s appointment as EC.
Meanwhile, Advocate Hemant asserted that as per Section 4 of PSEC Act, 1994, the Governor (of the State of Punjab) shall, by notification in the Official Gazette, appoint an officer of the State Government not below the age of 55 years and of the rank of Financial Commissioner, or the Principal Secretary to the State Government having service as such for a minimum period of two years or a serving or retired Judge of the High Court as (State) Election Commissioner.
It has been further provided in the ibid 1994 Act that no Officer, who has attained such age of superannuation, as may from time to time be fixed by the State Government, shall be appointed as SEC. Further, the SEC shall hold office for a term of five years from the date he assumes his office. However, where such (appointed) person as SEC attains the age of 65 years before the expiry of the said term of five years, he shall vacate his office on the date on which he attains the said age.
Pertinent to mention that till date six retired IAS Officers viz. S/Sh. Manmohan Singh, CD Cheema, CL Bains, AK Dubey, SS Brar and Jagpal Singh Sandhu have been appointed as SEC, Punjab from time to time. Interestingly, all of the above six were appointed as SEC when they were still in IAS with a few months of service left. It is provided in Section 8 of PSEC Act, 1994 that a person, who immediately before the date of assuming office as SEC was in the service of the State Government, shall be deemed to have retired from that service on the date on which he assumes office as SEC.
Be that as it may, a year has passed since the previous SEC, Punjab Jagpal Singh Sandhu, who was appointed as such in Dec, 2016 completed his tenure of 5 years in Dec, 2021 however the post has not been filled for the reasons best known to the State Government of Punjab.
Hemant said that it was the duty of the then Charanjit Singh Channi led Congress dispensation which was in power in the State of Punjab during Dec, 2021 to appoint a successor to previous incumbent Jagpal Singh Sandhu, however it did not for reasons best known to it. Pertinent that the Model Code of Conduct was however imposed in the State of Punjab with effect from Jan 8, 2022 with the announcement of Poll Schedule for General Elections to 16th Punjab Legislative Assembly by Election Commission of India. Hence before ibid date, the then Charanjit Channi Government was very much competent to appoint Sandhu’s successor. Perhaps, with the previous approval of ECI, the Channi Government could also have appointed new SEC, Punjab even during the continuance of Model Code of Conduct as the same is a constitutional post which ought not to be kept vacant for months.
If appointed by Channi Government, such SEC would have continued till Dec, 2026 or till his age of 65 years, whichever was earlier, notwithstanding the change of guard in the State of Punjab in March, 2022 since under Article 243 K of Constitution of India, SEC shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of SEC shall not be varied to his disadvantage after his appointment.
Furthermore, the current Bhagwant Mann led AAP Government which assumed reins of power in the State of Punjab with effect from March 16, 2022 has not taken a call in this regard i.e. has not appointed a new SEC, Punjab in the past over eight months of its tenure till date.
Hemant opines that since the SEC is a constitutional post, hence it ought not to be kept vacant for such a long period. It also amounts to violation of constitutional provisions by the State Government of Punjab.
The Advocate says that in the event of any further inordinate delay, he would be compelled to file an appropriate Writ Petition/Public Interest Litigation before the Hon’ble Punjab and Haryana High Court in this regard.