,BHAGWANT MANN GOVT YET TO TAKE A CALL, SAYS HIGH COURT ADVOCATE HEMANT KUMAR
Face2News/Chandigarh
The Calendar Year 2022 is ending today. Although this year witnessed a change of guard in the State of Punjab during March this year when Bhagwant Mann led Aam Aadmi Party (AAP) registered a stupendous victory in 16th Punjab Assembly General Elections winning a whopping 92 out of 117 seats. Bhagwant Mann assumed reins of power on 16 March.
Also, owing to such a huge tally of seats in the current Assembly, AAP has been able to send all its seven party candidates to Rajya Sabha from the State who got elected without any contest. Meanwhile, during the past nine months of AAP dispensation, the State has witnessed two Advocate-Generals with firstly appointed Dr. Anmol Rattan Sidhu getting replaced with Vinod Ghai in July this year.
However, an Advocate at Punjab and Haryana High Court, Hemant Kumar, resents the fact that during the entire year 2022, the coveted post of Punjab State Election Commissioner remained vacant.
On Dec 1, in response to a Legal Notice sent by this Advocate, the Elections Department of State Government however replied that appointment of new State Election Commissioner (SEC) in Punjab is
under consideration of the State Government.
The Advocate has 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.
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, over 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 the third week of Dec, 2021 however the post has not been filled for the reasons best known to the State Government of Punjab.
(SUBHEAD)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.
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.
