Vijaywada, May 30: In its landmark judgment against the Andhra Pradesh Panchayat Raj (Second Amendment) Ordinance (No.5 of 2020), the High Court said the highly objectionable part of it was the appointment of Justice (retd.) V. Kanagaraj as the State Election Commissioner (SEC) by the Governor in the exercise of the power under Section 200 of AP Panchayat Raj (APPR) Act, 1994, instead of Article 243K(1) of the Constitution merely on the supply of biodata by Chief Minister and the new incumbent (Justice Kanagaraj) being a person of more than 77 years of age.

In such a case, how can free and fair elections be held for Panchayats and municipalities, asked Chief Justice J.K. Maheswari and Justice M. Satyanarayana Murthy, who also observed that the power (to promulgate the ordinance) was actuated by oblique reasons and on extraneous grounds without having any material for the Governor to be satisfied with the required circumstances, The Hindu reported.

Further, the judges said the State government should re-visit the definitions of Section 2(39) and 2(40) and the provisions of Section 200 of the APPR Act, 1994, and take a decision in accordance with the spirit of the Constitution as expeditiously as possible.

The court stated that the expression ‘conditions of service and tenure of office’ in Article 243K(2) of the Constitution do not include ‘appointment’ and for the appointment of SEC, the State Legislature does not have any power to propose or prescribe the pre-eligibility and manner of the appointment by the aid and advice of Council of Ministers.

The ordinance cannot take away the vested right of Mr. Ramesh Kumar without the completion of the tenure (five years) for which he was appointed. It (the ordinance) is actuated by fraud on the power of the Constitution and does not qualify the test of rationality and reasonableness under Article 14, CJ Maheswari and Justice Satyanarayana Murthy ruled.

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