Aparmita Prasad Singh vs State of U.P.

Pradeep Kant, J.—The petitioner, who was holding the post of State Election Commissioner, U.P. challenges the validity of the State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) (Second Amendment) Rules, 2007, pleading under alia, that the reduction of term of office of the Election Commisioner (Tenure) from seven years to five years is ultra vires the constitutional mandate enshrined in Article 243K and, in particular, to the proviso attached to subclause (2). The grounds, on which the challenge has been made, are as under:

(i) The tenure of office of the State Election Commissioner could not have been reduced for the present incumbent as it amounts to changing the conditions of his service to his disadvantage after his appointment; and

(ii) As a consequence of the curtailment of tenure of the office of the present incumbent as State Election Commissioner, in essence, he has been removed from the office which could not have been done, except by following the procedure, namely, the manner and on the like grounds, as a Judge of the High Court could have been removed.

Corollary to the aforesaid argument is that the Amendment Rules of 2007 is camouflage for the removal of State Election Commissioner from his office which cannot be said to be cessation from office.

The petitioner was appointed as the State Election Commissioner on 5.12.2001 and he was to continue upto the age of 65 years i.e. upto 9.12.2006. The ''conditions of service'' and the ''tenure of the office'' of State Election Commissioner on the date of the appointment of the petitioner, were governed by the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) Rules, 1994, hereinafter referred to as the Rules of 1994, framed by the Governor in exercise of powers conferred by Article 243K of the Constitution read with the proviso to Article 309 of the Constitution, regulating the appointment and conditions of service to the post of State Election Commission for Panchayat Raj and Local Bodies in Uttar Pradesh.

In the Rules of 1994, the term of the office given in Rule 4 was five years and the age upto which the Commissioner was allowed to hold the office was 65 years.

Almost on attaining the age of 65 years and on the completion of the tenure of five years of the petitioner, as prescribed in Rules of 1994, the State amended the aforesaid Rules on 8.12.2006, by bringing into effect the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) (First Amendment) Rules, 2006, hereinafter referred to as the Rules of 2006, by means of which Rule 4 of the 1994 Rules, was amended and the period of ''five years'' tenure was substituted by ''seven years'' and the words ''sixty five years'' appearing in proviso under Rule 4, were substituted by the words ''sixty seven eyars''. By virtue of Rule 2 of Amendment Rules of 2006, the amended rule was to apply to the person holding the office of the State Election Commissioner including the present incumbent, namely, the petitioner.

In consonance to the amended Rule 4 of the Rules of 2006, the petitioner was to continue as State Election Commissioner for another period of two years and the disqualification for holding the office of State Election Commissioner so far the age is concerned was prescribed as 67 years. However, with the change of guards, namely, after the elections of Vidhan Sabha (Legislative Assembly) held in the State of Uttar Pradesh in April and May, 2007, wherein the ruling party of the erstwhile Government could not make out a majority, a new Government came into power and soon thereafter the aforesaid Amendment Rules of 2006 were amended by notifying the Amendment Rules of 2007, by means of notification dated 1.6.2007.

The Amendment Rules of 2007, in fact, resubstituted the original term of tenure of office of the State Election Commissioner and disqualification for holding the office after 65 years, as was provided in the Rules of 1994. The tenure of office, therefore, was curtailed to five years from extended term of seven years, which was the initial tenure in the Rules of 1994 and the disqualification to hold the office of State Election Commissioner beyond 65 years was substituted in place of enhanced age of 67 years, introduced by the Amendment Rules of 2006. The petitioner, who had already completed five years of his tenure as State Election Commissioner, naturally was repleaced by another incumbent Sri Rajendra Bhaunwal.

Initially when the writ petition was filed during vacations, the Amended Rules of 2007 were not filed and also Sri Rajendra Bhaunwal, the new State Election Commissioner was not impleaded as a party, therefore, an amendment application was moved, which was allowed.

Later, during the course of arguments, learned counsel for the petitioner Sri Umesh Chandra, Senior Advocate, relying upon the observations made in the case of State of Himachal Pradesh and another v. Kailash Chand Mahajan and others, 1992 Supp. (2) SCC 351, submitted that it was not necessary for the petitioner to implead the State Election Commissioner, namely, Sri Rajendra Bhaunwal and, therefore, notice need not be issued. The prayer was accepted.

For having a clear glimpse of the original Rule 4 of the Rules of 1994 with its two amendments, it would be appropriate that the same be reproduced, which are as under:

Rules of 1994

Term of office The Commissioner shall hold office for a term of five years.

Provided that no Commissioner shall hold office after he has attained the age of sixtyfive years.

Amendment Rules of 2006

In the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) Rules, 1994, in Rule 4

(a) for the words ''five years'', the words ''seven years'' shall be substituted; and

(b) for the words ''sixty five years'' appearing in the proviso thereto, the words ''sixty seven years'' shall be substituted.

Amendment Rules of 2007

In the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) Rules, 1994, for Rule 4, set out in column 1 below the rule as set out in column 2 shall be substituted namely:

Column 1 Column 2

Existing Rule Rule as hereby substituted

The Commissioner shall hold office The Commissioner shall hold

for a term of seven years. office for a term of five years:

Provided that no Commissioner shall Provided that no Commissioner

hold office after he has attained the shall hold office after he has

age of sixty seven years. attained the age of sixty five years.

Sri Umesh Chandra, learned counsel appearing for the petitioner at the outset, submitted that the ''tenure of office'' could have been altered to five years from seven years, with prospective effect, viz. for the new incumbent who would have joined the office after the tenure of the present incumbent (petitioner) i.e. after the extended tenure of two years, had come to an end, but it could not be made applicable to the incumbent already in office.

Assailing the aforesaid Amendment of 2007, it has been argued that by curtailing the tenure of the office of State Election Commissioner, the petitioner, in fact, has been removed from his office, which is hit by the first part of proviso to subclause of Article 243K and also because the tenure of office or the term, during which the incumbent could remain in office, is nothing else but condition of his service, the amendment is also hit by second part of the proviso aforesaid, which specifically prohibits the change of condition of service to the disadvantage of the incumbent after his appointment.

In response, Sri J.N. Mathur, learned Additional Advocate General submitted that tenure of office of the State Election Commissioner and his conditions of service, both are governed by two distinct and separate provisions in the Constitution itself and, therefore, words aforesaid cannot be interchanged nor can be read as synonym to each other. His submission is that the reduction of tenure of office can neither be equated to removal from service nor it is, in fact, or legally removal but it is only cessation of office. Fixing of tenure in view of constitutional provisions of Article 243K can also not be taken as a condition of service of the State Election Commissioner.

Learned counsel further submitted that the Governor had the power to make the Rules operative from retrospective effect or from a back date and also to make them applicable to the incumbent presently in office. The Rules of 2007 specifically say that the Rules shall apply to all State Election Commissioners, including the present incumbent.

The rule thus, has not been framed for one particular person, but for all persons who hold the office of State Election Commissioner, either in future or at present.

The plea of the learned Additional Advocate General that the petitioner was initially appointed under the original Rules of 1994, wherein the period of his office was five years but on the eve of his completion of aforesaid tenure, the same was enhanced for a further period of two years making it seven years and, therefore, when the tenure can be extended/enhanced by means of Amendment in the Rules, then it can also be reduced, as the power to enhance also includes the power to reduce the tenure of State Election Commission, has been answered by the learned counsel for the petitioner saying that it is one way traffic, namely, that the State can enhance but cannot reduce the tenure, as rights accrued after enhancement of ''tenure'' which could not have been curtailed subsequently, as such an action would again be hit by the protection given in the proviso to subclause (2) of Article 243K.

Before proceeding further to analyzes the arguments raised from both the sides, it would be appropriate to put on record that though in the writ petition, the age for being disqualified to hold the office of State Election Commissioner has been reduced from 67 years to 65 years in view of the Amendment Rules of 2007 has been mentioned, but no argument has been advanced from the side of the petitioner on the aforesaid score, who has confined his argument only on the curtailment of tenure of office by means of the aforesaid amendment and consequent, his alleged ouster from the post saying it to be ''removal''.

Article 243K with its subclauses and the proviso, reads as under:

�243K. Elections to the Panchayats The superintendence, direction and control of the preparation of electoral rolls for, and conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.

(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may be rule determine:

Provided that the State Election Commissioner 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 the State Election Commissioner shall not be varied to his disadvantage after his appointment.

(3) The Governor of a State shall, when so requested by the State Election Commission; make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).

(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.�

Subclause (2) of Article 243K confers power upon the Governor to prescribe the ''conditions of service'' and ''tenure of office'' of State Election Commissioner by framing a rule, subject to the provisions of any law made by the legislature of the State. The proviso attached thereto protects the incumbent so appointed from being removed in any manner, except in the manner and on the like ground as a Judge of a High Court could be removed. The proviso also puts an embargo and prohibits any change in the conditions of service to the disadvantage of the incumbent after his appointment as State Election Commissioner.

Whether the tenure of office of the State Election Commissioner is one of the inherent ''facets of conditions of service'' or in other words ''tenure of service, is nothing but a condition of service and, therefore, after his appointment, the tenure cannot be changed to his disadvantage, namely, curtailed or it does not fall within the term ''condition of service'' of State Election Commissioner within the meaning of Article 243K and whether the curtailment of tenure would mean removal from office, without following the manner and without there being any ground which could be sufficient to remove a Judge of the High Court, are the questions, which emerge from the arguments raised from both the sides. In case it is found that tenure of office is a ''condition of service'' then of course, it cannot be changed to the detriment of the incumbent already in office but in case his ''conditions of service'' and ''tenure'' of office are two distinct terms, in which latter cannot be read into former condition, the reduction of the tenure would neither be taken as a change of condition of service to the detriment of incumbent nor it can be taken to mean removal from office, so as to be in violation of the first part of the proviso aforesaid.

In common parlance and in relation to the government servants serving under the State, subject to the rules, which govern their service, one may assume that the tenure of service is also one of the conditions of service but when a Constitutional provision is to be understood and interpreted, which does not relate to government servants but has been specifically incorporated for a constitutional functionary, the principles, which govern the service conditions of government servants under the rules applicable to them, cannot be taken to be a safe yardstick for interpreting the words used in the Constitution nor the same meaning can be assigned to them unless, of course, either the Article of the Constitution does not leave any ambiguity to infer the same proposition or such an interpretation itself flows looking to the intention of the framers and the purpose and object, which is sought to be achieved by using a particular phraseology.

While interpreting a constitutional provision, care is to be taken that no word used is left unattended, nor an interpretation can be given, which may lead to selfcontradiction of the language used and the words chosen and in doing so, the intention of the rule (provision), i.e. the legislative intent, the reason of making the provision, which in turn will highlight the purpose and object of the words used and the nexus, which they have to the provision, which is being interpreted, has to be taken into account. Any word in the Constitution cannot be taken to be superfluous or without any meaning nor it can be given emphasis more than it is required. If the language is plain and simple, there should not be any attempt to infuse ambiguity therein and then to interpret in a different manner on the assumption of undoing the ambiguity. The words and phrases used in a statute or for that matter in the Constitution, have to be given their natural and simple meaning, unless the context otherwise requires and only when principle of harmonious construction is to be applied for bringing the two opposite terms in consonce, so that one does not negate the meaning and effect of the other.

Article 243K deals with election of Panchayats, wherein the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats has been vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. This means that the State Eelction Commissioner is to be appointed by the Governor.

Subclause (2) vests power with the Governor of the State to lay down the conditions of service and tenure of office of the State Election Commission by making a Rule, which, of course, shall be subject to the provisions of law made by legislature of the State.

The rule making power includes the power to give effect to the rule with retrospective effect or from any given back date and also the power to make it applicable to one, or to all persons covered by the Rule.

A conjoint reading of Article 243K with subclause (2) makes is crystal clear that the Governor being the appointing authority of the State Election Commission, he has also been conferred power of prescribing conditions of service and tenure of office of the State Election Commission, subject to any law being made by legislature of the State. The control of the State over prescribing conditions of service and tenure of office of the State Election Commissioner, thus, is limited to the extent as emanates from the words ''subject to'' the provisions of law made by the legislature of the State. The intention of the aforesaid provision and the purpose of giving power to the Governor to make the rule with respect to ''conditions of service'' and ''tenure of office'' unhesitatingly is the natural outcome of the fact that the Governor is the appointing authority of the State Election Commissioner and the person, who appoints the State Election Commissioner, thus, would be competent to lay down the conditions of service and tenure of office also.

The effect of the proviso attached to subclause (2) is also not clouded with any ambiguity as it prescribes safeguard against the arbitrary action of removing a State Election Commissioner, may be, by a rule or otherwise, merely on some pretext and for any ulterior motive and, therefore, the first part of the proviso specifically puts an embargo on the removal of the State Election Commissioner in any manner except in like manner and on the like grounds as Judge of the High Court can be removed. A Judge of the High Court can be removed in terms of Article 217 subclause (b) of the proviso attached to clause (1) read with clause (4) of Article 124.

The proviso further maintains and protects the conditions of service of the State Election Commissioner in its second part, when it again prohibits any change in conditions of service of the State Election Commissioner, as they existed on the date of appointment and if conditions of service is sought to be altered to his disadvantage thereafter. The object behind the said proviso stares on the probable infringement of the right of the State Election Commissioner to continue with the same terms and conditions on which he was appointed and so as to protect him from political interference and undue pressure being exercised from any corner, and to provide him full security and safety from pressure tactics from any person or political party in the discharge of his functions, viz. holding and conducting the elections, which is the backbone of any healthy and robust democratic polity. Legislative intent is thus, to insulate the office of the State Election Commissioner from any encroachment on his functioning and interference by political parties or persons in power and to make it absolutely independent and the safeguards provided therein, lay down the manner in which the desired object can be achieved.

The State Election Commissioner, being a constitutional functionary responsible for the conduct of all elections to the Panchayat, has to be immune from philosophy and political agenda of any political party and to keep him/her insulated from such foreign pressure, for which such an immunity has been given to State Election Commissioner. The elections are sacrosanct and they have to be conducted in an absolute fair and impartial manner, which are free from any fear, complex or pressure as it is the will of the people, which reflects in the elections, namely, the desire to elect a public representative of their own choice, which would necessarily be done by a process, which, to its maximum, is shielded and protected by the constitutional provision so that howsoever strong the political party might be, it may not be able to pierce the veil of sanctity of elections.

The argument that reduction of the tenure of office by means of amending the rule is removal from the office of the State Election Commissioner of the incumbent in office and, therefore, is a violation of the mandate of the Constitution as provided in the proviso, requires consideration of the meaning of the term removal, namely, the language used in the proviso, which says that State Election Commissioner ''shall not be removed from his office'' and to find out as to whether this would mean simple cessation of office or removal, which could not have been done otherwise than following the provisions of Article 217 subclause (1)(b) read with Article 124(4).

Removal of a Judge of the High Court can be done on the ground of ''proved misbehaviour'' and ''incapacity'' and that too in the manner prescribed. The curtailment of tenure or laying down a new tenure in place of the existing one, obviously cannot be treated to be misbehaviour or incapacity of the incumbent and in the absence of any charge of misbehaviour or incapacity and that too without being proved, it would be a extremely farfetched conclusion to hold that prescription of the tenure of office by means of an amendment, which in fact, ceases the term of the office of the incumbent in office, would amount to removal within the meaning of the term used in Article 217 subclause (1) proviso (b) and also subclause (4) of Article 124 and Article 243K.

No element of any punishment on the ground of proved misbehaviour or incapacity even lurks in the rule which has been amended. The Governor was competent to lay down the period of tenure of office, which is not in contravention or in opposition of any law framed by the State Legislature and, therefore, by virtue of rule, the Governor did and could prescribe the tenure of office. Simply because the incumbent in chair finds that his tenure of office has come to an end because of such prescription, for which reason he could not hold the office any further, it cannot be said that he has been removed from office, much less on the ground of proved misbehaviour or incapacity. If there is no other ground on which a High Court Judge could be removed from office during subsistence of his tenure of service, there would be no occasion to follow the procedure and the manner in which the Election Commisioner could be removed as the same would not at all be attracted in the case of cessation of office, by virtue of laying down the tenure or term of the office.

Learned counsel for the petitioner has also raised a plea that because of the change of Government, this reduction of tenure has been done with mala fide intention to remove the present incumbent, as soon after coming into power, the amendment has been brought into force.

At the outset it may be stated that merely because on the assumption of office by new Government, amendment has been brought in the rules, which has the effect of reducing the tenure of office of the present State Election Commissioner, it cannot be said that it is mala fide or it has been done with any ulterior motive. The Supreme Court in the case of K. Nagaraj and others v. State of Andhra Pradesh and another, (1985) 1 SCC 523, while considering the validity of law regulating the age of retirement of a government employee, made the following observations:

�It is untenable to contend that a law is bad because it is passed immediately on the assumption of office by a new Government. It must also be borne in mind that the question as to what should be the proper age of retirement is not a novel or unprecedented question which the State Legislature had to consider.�

Learned counsel for the petitioner, for emphasizing the role, power and sanctity of the office of the Election Commissioner, which has to remain immune from political and executive interference, relied upon the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405, wherein the Apex Court was considering the scope and ambit of Article 324 of the Constitution and observed as under:

�Elections supply the visa viva to a democracy. It was, therefore, deliberately and advisedly thought to be out paramount importance that the high and independent office of the Election Commission should be created under the Constitution to be in complete charge of the entire electoral process commencing with the issue of the notification by the President to the final declaration of result. We are not concerned with the other duties of the Election Commission in this appeal.�

The Court also observed that the Election Commission is a high powered and independent body which is irremovable from office except in accordance with the provisions of the Constitution relating to the removal of Judges of the Supreme Court and intended by the framers of the Constitution to be kept completely free from any pulls and pressures that may be brought through political influence in a democracy run on party system. Once the appointment is made by the President, the Election Commission remains insulated from extraneous influences and that cannot be achieved unless it has an amplitude of powers in the conduct of elections of course, in accordance with the existing laws.

In the case of T.N. Seshan v. Union of India, (1995) 4 SCC 611, the Supreme Court had an occasion to consider the nature and function of the Election Commission under Article 324 and the status of the Chief Election Commissioner and wherein Clause (4) of Article 324 does provide that (i) the Chief Election Commission shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and (ii) the conditions of service of the Chief Election Commisioner shall not be varied to his disadvantage after his appointment.

The Court observed that these two limitations on the power of Parliament are intended to protect the independence of the Chief Election Commissioner from political and/or executive interference. Further the Court observed as follows:

�The provision that the ECs and the RCs once appointed cannot be removed from office before the expiry of their tenure except on the recommendation of the CEC ensures their independence. The scheme of Article 324 in this behalf is that after insulating the CEC by the first proviso to clause (5), the ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC. Of course, the recommendation for removal must be based on intelligible and cogent considerations which would have relation to efficient functioning of the Election Commission. That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the day. It is necessary to realize that this cheek on the executive''s power to remove is built into the second proviso to clause (5) to safeguard the independence of not only these functionaries but the Election Commission as a body.�

Highlighting the importance of the constitutional functionaries and that they cannot treted as government servant, relying upon the provision of Article 317 (1) of the Constitution, the learned counsel for the petitioner referred to a reference. In re Reference under Article 317(1) of the Constitution of India (Special Reference No.1 of 1983) reported in (1990) 4 SCC 262, wherein a reference was made to the Supreme Court on the question of removal of a Member of Public Service Commission on ground of misbehaviour of slapping on the face of the lady Chairperson of the Commission during official discussion in office building. The Apex Court, while considering the case of such a member, found that the case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a Member of the Commission is different. The latter holds a constitutional post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of Part XIV of the Constitution. Further, the Court observed as under:

�In our view the decisions dealing with service cases relied upon on behalf of the respondents have no application ot the present matter and the reference will have to be answered on the merit of the case with reference to the complaint and the respondent''s defence.�

In another reference in the case of Ravinder Pal Singh Sidhu, Chairman, Punjab Public Service Commission, RE, (2003) 2 SCC 147, Presidential Reference to Supreme Court seeking suspension and removal of former Chairman, Punjab PSC Ravinder Pal Sidhu, by taking action leveling several charges of misconduct and malpractices, was considered. The Court was seized with the question that whether Sri Ravinder Pal Singh Sidhu ought, on the ground of misbehaviour referred to in the course of the Reference, to be removed from the office of the Chairman of the Commission and observed that ''when an incumbent in office has ceased to hold the said office, the question of removing such a person from office would not arise at all�.

Emphasizing the importance and object of Article 317(1), the Court further said as follows:

�We should not ignore that the object of Article 317(1) of the Constitution is to give protection to a Chairman or other member of the Public Service Commission in the matter of removal on the ground of misbehaviour and, therefore, the function of such determination is vested in this Court so that the Public Service Commission may be immune from political pressure.�

Based on the aforesaid proposition of law laid down by the Apex Court, and on the Constitutional provision of Article 243K and in particular, proviso to subclause (2), it has been submitted that office of the State Election Commissioner has been given due protection by the Constitutional provision aforesaid from any outward interference, pull and pressure who cannot be removed from office otherwise than in accordance with Constitutional provisions and, therefore, the curtailment of tenure of office is nothing but infringement of his legal protection given in the Constitution and is removal from office.

In the case of K. Nagaraj (supra) the Supreme Court considered the plea that the two notifications issued in exercise of power conferred by Proviso to Article 309 read with Article 313 of the Constitution, reduction the age of superannuation of all government employees, other than those in the Last Grade Service from 58 to 55 years, soon after resumption of office by a new Government, was a mala fide act and that reduction of the age of superannuation amounts to removal of the employees within the meaning of Article 311. The Court rejecting the aforesaid plea, observed as follows:

�The argument of mala fides advanced by Sri A.T. Sampath, and adopted in passing by some of the other counsel, is without any basis. The burden to establish mala fides is a heavy burden to discharge. Vague and casual allegations suggesting that a certain act was done with an ulterior motive cannot be accepted without proper pleadings and adequate proof, both of which are conspicuously absent in these writ petitions. Besides, the ordinancemaking power being a legislative power, the argument of mala fides is misconceived. The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose lis reasons for passing a law are those that are stated in the objects and reasons and if, none are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This find a �transferred malice� is unknown in the field of legislation.�

The plea that reduction of the age of retirement amounts to removal from service and, therefore, is violative of Article 311 (2) of the Constitution, was also rejected by the Court after holding that neither it was arbitrary nor unreasonable in the circumstances of the case. The Court further observed as under:

�But, apart from this position, we find it difficult to appreciate how the retirement of an employee in accordance with a law or rules regulating his conditions of service can amount to his �removal� from service. It is well settled that Article 311 (2) is attracted only when a civil servant is reduced in rank, dismissed or removed from service by way of penalty, that is to say, when the effect of the order passed against him in this behalf is to visit him with evil consequences.�

In State of Himachal Pradesh and another v. Kailash Chand Mahajan and others, 1992 Supp. (2) SCC 351, Kailash Chand Mahajan after retirement from the post of Chief Engineer from the State of Punjab, was appointed as a member of Himachal Pradesh State Electricity Board initially in the year 1982, which term was extended by issuing different notifications from time to time and lastly it was extended by notification dated 12.6.1989, in pursuance of which he was to continue in office of the Chairman till July 25, 1992 but in the meantime because of a new Government having come into power, notification were issued on March 6, 1990 initially extending the term of the Chairman only upto March 6, 1990, which in fact was curtailment of the already granted tenure to Sri Mahajan upto 25.7.1992 but later on, during legal battle, this notification and the notification by virtue of which his appointment as Member of the Board was also terminated, both were withdrawn but he faced a suspension order and show cause notice, which were also challenged by filing writ petition. During the meanwhile, Electricity (Supply) (H.P. Amendment) Ordinance, 1990 was issued. By virtue of the said ordinance, it was provided that no person shall continue beyond the age of 65 years as a Member of the Board. Consequently, Sri Mahajan''s tenure came to an end, he having reached the age of more than 65 years.

The arguments on behalf of Sri Mahajan were manifold but relevant are that the aforesaid action was mala fide and that all these efforts by issuing different notifications and prescribing qualification on the ground of age to hold the office of the Member and consequently of Chairman, were made only with a view to oust Sri Mahajan from office and that prescription of age of 65 years is nothing but removal from office. The Supreme Court, while framing the points for determination made the following observations:

�We will now deal with these points. In the normal course of events the first respondent would have continued, by virtue of his extension, upto July 25, 1992. However, consequent to the Assembly Elections held in the beginning of 1990, there was a change of the Government. The fourth respondent become to Chief Minister. From then on, the first respondent met with an avalanche of misfortune. He received successive blows. Hence he was obliged to wage legal battles. That is why the learned counsel for the first respondent would urge that all these attempts were only with the sole aim of removing the first respondent from office. The executive having failed in its attempt resorted to legislative process. It is unethical to do so. We are afraid, we cannot decide the case on ethics. We are to judge the law and the correctness of the legal provisions as we see them. Therefore, we are to move from the ethical plane to the legal plane.�

The Court further observed as under:

�For adumbrating this policy a legislation is enacted by the State. It is not for this Court to find out whether there was any need for such a legislation. Of course, for lack of legislative competence or for violation of the right to equality under Article 14 etc. the validity of the legislation may be scrutinized. But, certainly, that is far from saying the Court could examine the legislation from the point of view that it came to be passed with mala fide intention. By long established practice, which has received approbation through authorities of this Court, it has always refrained from attributing mala fides to the legislature. In fact, such a thing is unknown to law.�

Considering the plea of removal and cessation of office and the difference between the two distinct phrases, the Court found that Section 10 deals with removal or suspension of members, which gives power to the State Government to take such an action on the given grounds mentioned therein and that too after affording an opportunity, whereas the effect of amendment to Section 5(6) was that it introduced a new disqualification �if he has attained the age of 65 years� and as a consequence thereof, every person, who has attained the age of 65 years, shall cease to hold the office of Member. Taking note of the case of Pashupati Nath Sukul v. Nem Chandra Jain, (1984) 2 SCC 404, wherein it was stated as follows: �Article 191 of the Constitution prescribes the disqualifications for membership of the Legislative Assembly or Legislative Council of a State. On the incurring of any such disqualification a member of a Legislative Assembly or a Legislative Council ceases to be a member thereof�, the Court observed as under:

�Therefore, it will follow that once this disqualification of attaining the age of 65 years is incurred, there is an automatic cessation from holding office.�

The Court also found that the respondent ceased to hold the office by the rigour of law and made the following observations:

�We are unable to see any warrant for holding that Section 5(6) as amended having regard to the use of language �or being� would any way exclude such of those members or even the Chairman who have attained the age of 65 years of age at the time of appointment. Accordingly, we conclude that Section 5(6) itself would be enough to hold that on coming into force of the amending Act, namely, July 13, 1990 the first respondent ceases to hold the office by the rigour of law, as rightly contended by Mr. Shanti Bhushan, learned counsel for the appellant.�

����������.It is one thing that the State has power to take punitive action, it is entirely different thing to say that in law the first respondent ceases to hold office on the incurring of the disqualification of attainment of 65 years of age. It Section 5(6) itself bring about a cessation of office, that subsection being selfexecutory in nature, there is no need to provide for the same under Section 10 once again.�

In this case (Kailash Chand Mahajan), successive notifications were issued extending the term of appointment of the Chairman of Electricity Board and on the change of Government, on the very first day of taking Oath, the Chief Minister issued notifications curtailing his term. It is a different matter that during pending legal proceedings those notifications were withdrawn by the Government but soon thereafter amendment by virtue of an Ordinance was effected and a new disqualification was prescribed that no one would be allowed to continue or hold the office of the Member of Electricity Board after the age of 65 years. Consequence of such an amendment was that Sri Mahajan, who had already crossed the age of 65 years, ceased to hold the office. The plea that it was a case of removal from office under the pretext of prescribing a disqualification or so to say, age of retirement of a Member of the Board, did not find favour with the Supreme Court and it was rejected.

The power to remove the State Election Commissioner is a distinct and separate power, which flows from the provisions of Article 243K, which also prescribes, the manner and the grounds, on which such an action can be taken. The power of removal from office is thus, different than the cessation of office under rigour of law.

The first part of the Proviso, which is in negative terminology, in fact, is an enabling provision for removing the State Election Commissioner in the like manner and on the like grounds as a Judge of the High Court can be removed and not otherwise. The use of the word ''except'' puts strict limitation upon any action of removal, if not covered by the exception clause in the proviso aforesaid.

Learned counsel has heavily relied upon Hindi version of the Constitution, wherein, in the aforesaid provision words ''anyatha nahi'' have been used in place of the word ''except'' but we find that it does not alter the meaning and expression of the words used either language. Cessation of office because of curtailment of term or fresh prescription of tenure of office, cannot be taken to be an act of removal from office of State Election Commissioner.

Removal from office and cessation from office are two distinct and separate phrases, which cannot be interchanged nor can be given one and the same meaning. The prescription of tenure and conditions of service of State Election Commissioner shall be such, as the Governor may, by rule, determines. The Governor thus, has the power to prescribe both, namely, condition of service and also tenure of office. Cessation of office on the expiry of tenure is neither removal nor arbitrary ouster from office. If the Governor has the power to fix or prescribe the tenure by rule, he has the power to amend the rule also, either for extending the term of tenure or for reducing the same. Once the tenure, as prescribed, comes to an end, the incumbent in office shall cease to function with immediate effect. This is not removal from office.

The object of the proviso attached to subclause (2) of Article 243K is to give protection to the State Election Commissioner in the matter of removal on the ground of misbehaviour and incapacity. In achieving this object, it expressly says that the State Election Commissioner can be removed from office in the manner and on the grounds on which a Judge of the High Court can be removed. Neither Rule in question speaks about any such misbehaviour or incapacity nor it tends to remove an erring State Election Commissioner, therefore, the prescription of tenure of office, even if it has the effect of reducing the tenure, would not fall within the mischief of removal nor it has the effect of removing the incumbent in office. It would be a case purely of cessation of office.

The second argument which has been very forcefully urged, namely, the tenure of office is included in the conditions of service and, in fact, is a condition of service and, therefore, it cannot be altered to the disadvantage of the appointee, after his appointment, proceeds on the assumption that once the State Election Commissioner has been appointed for a given tenure under the existing rules, he has a vested right to continue for the tenure for which he is appointed and any change therein, to his detriment, would mean the alteration of condition of service to his disadvantage.

Reliance has been placed upon State of Madhya Pradesh and others v. Shardul Singh, 1970 (1) SCC 108 and in particular Paras 8 and 9 of the report which read as under:

�8. One of the powers conferred under this proviso is to make rules regulating the conditions of service of persons appointed to civil services of the Union or the State as the case may be. The expression �conditions of service� is an expression of wide import. As pointed by this Court in Pradyat Kumar Bose v. The Hon''ble Chief Justice of Calcutta High Court, (1955) 2 SCR 1331, the dismissal of an official is a matter which falls within �conditions of service� of public servants. The Judicial Committee of the Privy Council in North West Frontier Province v. Suraj Narain Anand, (1948) LR 75 IA 343, took the view that a right of dismissal is a condition of service within the meaning of the words under Section 243 of the Government of India Act, 1935. Lord Thankerton speaking for the Board observed therein:

�apart from consideration whether the context indicates a special significance to the expression �conditions of service� their Lordships are unable in the absence of any such special significance, to regard provisions which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise than conditions of the service, whether these provisions are contractual or statutory; they are therefore of opinion that the natural meaning of the expression would include such provision.�

In P. Batakotaiah v. The Union of India and others, (1958) SCR 1052, this Court proceeded on the basis that a rule providing for the termination of the service of a railway official can be made in exercise of the powers conferred on the Government by Sections 241 (2), 247 and 263(3) of the Government of India Act, 1935.

The expression ''conditions of service'' means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension, etc.�

This case relates to a government servant, who was Sub Inspector of Police in the State of Madhya Pradesh. He was dismissed from service after holding enquiry. Challenge was made to the order of dismissal from service on the ground that the Superintendent of Police was not competent to initiate disciplinary proceedings, the officer having been appointed by the Inspector General of Police, being lower in rank than the appointing authority. The Superintendent of Police had initiated the disciplinary proceedings in pursuance of Regulations known as Central Provinces and Bihar Police Regulations.

The question for decision was that whether the power conferred upon the Superintendent of Police under Central Provinces and Bihar Police Regulations was ultra vires Article 311 (1) of the Constitution.

The Apex Court, while rejecting the aforesaid plea and setting aside the order passed by the High Court, observed that Article 311 (1) does not in terms require that the authority empowered under that provision to dismiss or remove an official, should itself initiate or conduct the enquiry preceding. But for the incorporation of Article 311 in the Constitution even in respect of matters provided therein rules could have been framed under Article 309. (emphasis supplied)

The Court thus, upheld the Rules and also the power to make the Rules. In the instant case also, Article 243K subclause (2) gives power to make Rules, to the Governor prescribing conditions of service and tenure of office of the State Election Commissioner, subject to the provisions of any law made by the State legislature.

Reliance has also been palced upon the case of Dr. D.C. Saxena v. State of Haryana and others, (1987) 3 SCC 251. In this case, the Chairman of Haryana Board of School Education appointed under Section 3(4) of Haryana Board of School Education Act, 1969, challenged his order of termination saying that his original appointment was for a period of two years as mentioned in the appointment order. The said period was curtailed and his services were terminated. The Supreme Court took into consideration the order of appointment, which said that Governor of Haryana is pleased to appoint Dr. D.C. Saxena as Chairman of the Haryana Board of Education in place of Sri Anil Razdan, IAS, with immediate effect for a period of two years and also the recital made in Para 2 of the said order that the terms and conditions of his appointment will be notified later on. While prescribing the tenure of office in the conditions of his appointment, it was stated as under:

�His tenure of office shall be for a period of two years from the date of assuming charge. The Government may, however, curtail the tenure at any time.�

The aforesaid condition in appointment order, resulted into termination of his appointment, even before the completion of two years'' term. The appellant''s case was that his original appointment was for two years at a time when he was holding a prestigious post, that he relinquished that post and took charge of the new post, that the curtailment of the original period fixed altered his position to his detriment and that all this was done mala fide. The appellant also submitted that the curtailment and removal was punitive and that it was done in violation of the law as laid down in various decisions.

The Apex Court, considering the relevant provisions, in Para 9 of the report, observed as under:

�9. The appellant, in desperation, put forward another plea that the expression ''terms and conditions of service'' would not take within its ambit �tenure of service�. In other words, his case was that the word �term� did not indicate the period of service and that therefore, the Government did not have the requisite authority to curtail his tenure. This plea was met by the respondents'' counsel saying that the word �term� included the tenure of service also. Both sides invited us to dictionaries in support of their respective cases. We do not think it necessary to seek support from the dictionary for this purpose. The expression �terms of service� clearly includes tenure of service. We regret, we cannot help the appellant on this plea either.�

In Para 10 of the report, the Court refused to grant any relief to Dr. D.C. Saxena, which reads as under:

�10. In view of the peculiar facts of this case, we do not think it necessary to consider the various authorities cited before us regarding the violation of Article 311 (2) and violation of natural justice. We are extremely unhappy that such a situation has come to pass. Perhaps, the appellant''s grievances are wellfounded. He left his prestigious post and joined the Board expecting to be there for two years when he had a raw deal at the hands of the authorities. However, on an application of the provisions of the Haryana Board of School Education (Amendment) Act, 1980 we find it difficult to rescue the appellant from his predicament. We trust and hope that the Punjab University will be generous enough to accommodate him properly.�

The aforesaid judgment has been cited to strengthen the submission that the expression ''term of service'' includes ''tenure of service''.

S.Sundaram Pillai and others v. V.R. Pattabiraman and others, (1985) 1 SCC 591, was a case in which the T.N. Buildings (Lease and Rent Control) Act, wherein the proviso to Section 10(2), which used the expression ''wilful default'' in negative form with the clarification of expression given in explanation to the proviso by Act 23 of 1973 was under consideration. Interpreting the scope and ambit of the aforesaid proviso, the Apex Court observed as under:

�We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes.

(1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.�

In the case of Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, the Supreme Court, defining the scope and meaning of a proviso, made the following observations:

����The law is trite. A proviso must be limited to the subject matter of the enacting clause. It is settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. �Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context'' (1912 AC 544). If the rule of construction is that prima facie a proviso should be limited in its operation to the subjectmatter of the enacting clause, inflated by the proviso, sins against sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it, stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction.

The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest.

The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. (Maxwell on Interpretation of Statutes, 10th Edn. P.162).�

A proviso has to be limited in its operation to the subject matter of the enacting clause. Subclause (2) of Article 243K speaks of ''conditions of service'' and also ''tenure of office'', whereas proviso annexed thereto, does not mention the words ''tenure of office'' and only gives protection to the appointee from change of his ''conditions of service'' to his detriment after his appointment. The distinction is clear. The proviso aforesaid, therefore, cannot be given an expression, which may enlarge its scope, as against the main provision i.e. subclause (2), to which it is attached. In case the intention of the Rule or object of the provision was to give that very protection to the tenure of office of the State Election Commissioner, there was no reason as to why the said term ''tenure of office'' would not have been mentioned in the proviso also. Once the framers of the provision had deliberately chosen not to include the term ''tenure of office'' in the proviso, the said term cannot be read into ''conditions of service'', a phrase used in the proviso. Any interpretation otherwise, may mean introducing words in the proviso, which have not been deliberately used or so to say, have been explicitly excluded. The use of word ''and'' between the ''conditions of service'' and ''tenure of office'' also supports the plea that the two different phrases have been used for two different purposes and have separate meaning.

The argument of the learned counsel for the petitioner is based on two simple propositions (i) the office of the State Election Commissioner is a creation of the constitutional provision of Article 243K, which has been conferred with very wide and plenary powers in the matter of superintendence, control and conduct of elections of Panchayat, therefore, his function, status and authority cannot be lightly or casually infringed upon by the rules framed by the Governor; and (ii) the tenure of service of the State Election Commissioner being one of the conditions of his service, cannot be altered even by framing rules, to the detriment of the incumbent in office after his appointment.

The plea is more or less based upon the dictum of the Supreme Court in the matters relating to conditions of service of government servants.

Conditions of service in the matters of government servant normally do not prescribe any tenure of office but for the age of retirement and the incumbent entering into the government service would be entitled to continue in office till he reaches the age of retirement, irrespective of his tenure in service. The tenure of office may differ from one government servant to another looking to the date of entry into service. For example, one person may enter into government service at the prescribed minimum age, may be 21 years or 18 years and the other may enter into service at the maximum age prescribed, may be, so to say, 25 years or 28 years, but both of them would retire on attaining the same prescribed age of superannuation. Tenure of service thus, in both the cases would be different i.e. former will have longer tenure of service and the latter will have lesser tenure of service, but both will retire on reaching a particular age. In such matters, which relate to government servant and where no specific tenure of service is prescribed and only age of retirement is provided, the tenure of service shall stand included in the conditions of service but in the case where conditions of service and tenure of office have to be separately provided or can be separately provided, there cannot be any presumption that tenure of service would necessarily be a condition of service, muchless shall stand included in the conditions of service.

Article 243K vests power with the Governor to lay down the conditions of service and tenure of office of the State Election Commisioner. This power of the Governor in no way supersedes or militates against the provision of Article 243K or to the proviso annexed to subclause (2). The aforesaid constitutional provision of Article 243K does not prescribe the conditions of service nor tenure of office and leaves it open to the Governor to frame the rule for the aforesaid purpose, subject to the provisions of any law made by the Legislature of the State.

Thus, it cannot be argued that in terms of Article 243K or its subclause (2), the Governor cannot frame any rule prescribing the conditions of service and tenure of office separately and distinctly.

It is constitutional requirement that a rule has to be framed by the Governor prescribing both, i.e. ''conditions of service'' of State Election Commissioner and also ''tenure of office''. On what wisdom the Governor framed these rules and what conditions of service and tenure of office has been determined by him or can be determined by him is the discretion of the Governor, as held in the case of Kailash Chand Mahajan (supra).

Since it was desirable to prescribe the conditions of service as well as tenure of office, therefore, the Rules of 1994 were initially framed which were later on amended by Rules of 2006 and again by the Rules of 2007, which in effect restored or resubstituted the original rules in place of amended Rules of 2006, with respect to tenure of office of the State Election Commissioner and also with respect to the disqualification of age. The constitutional functionaries/appointees stand on a different and higher footing, as compared to the government servants, can be no more in debate, as has been concluded by the Apex Court in In re Reference under Article 317 (1) of the Constitution of India (Special Reference No.1 of 1983) reported in (1990) 4 SCC 262 and also in the reference in the case of Ravinder Pal Singh Sidhu (2003) 2 SCC 147.

The standards and norms, which are required to be observed in the matter of government servants, may not be strictly or even partially applicable in the case of constitutional functionaries.

Sri Jaideep Narain Mathur, learned Additional Advocate General, also drew our attention to the dictionary meaning of the word ''tenure'' and in particular ''tenure of an office'', which means the manner in which it is held, especially with regard to time. ''Term of office'', means duration of holding public or private office. The tenure of federal judges is during life and good behaviour. The tenure of merit system employees is during satisfactory performance of duties until a fixed age of retirement unless the position is discontinued, whereas ''condition of employment'' means qualification required for a particular job; circumstances under which employment may be secured and maintained.

We need not enter into the dictionary meaning of the words used in the Constitution to interpret the term ''condition of service'' and ''tenure of office'' as mere reading of the said provision, evidences that the aforesaid two phrases used in the Article, have two different connotations.

Learned Additional Advocate General in support of his plea that the legislative intent of subclause (2) is to confer power upon the Governor to prescribe the conditions of service and tenure of office separately, relied upon the case of Gwalior Rayons Silk Mfg. (Wig.) Co. Ltd. v. Custodian of Vested Forests, Palghat and another, AIR 1990 SC 1747, wherein the Supreme Court was considering the question of construction of the plain words of a term ''private forest'' as defined in the statutory enactment called �The Kerala Private Forest (Vesting and Assignment) Act, 1971. Taking note of the fact that ''Private Forest'' has been defined in the Vesting Act as well as under the Kerala Land Reforms Act as amended by Amendment Act 35 of 1969, the Court observed that judicial interpretation given to the words defined in one statute does not afford a guide to construction of the same words in another statute unless the Statutes are pari materia legislations. The Court also found that the aim and object of the two legislations are not similar in the first place. Secondly, the definition of ''private forest'' in the KLR Act is not just the same as the definition of ''private forest'' in the Vesting Act.

The Court noted the observations made by Felix Frankfurther, J. which read as under:

�Legislation is a form of literary composition. But construction is not an abstract process equally valid for every composition, not even for every composition whose meaning must be judicially ascertained. The nature of the composition demands awareness of certain presuppositions. And so, the significance of an enactment, its antecedents as well as its later history, its relation to other enactments, all may be relevant to the construction of wards for one purpose and in one setting but not for another. Some words are confined to their history; some are starting points for history. Words are intellectual and moral currency. They come from the legislative mint with some intrinsic meaning. Sometimes it remains unchanged. Like currency, words sometimes appreciate or depreciate in value.� The learned Judge further stated: �Legislation has an aim; it seeks to obviate some mischief; to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evinced in the language of the statute, as read in the light of other external manifestations of purpose. That is what the Judge must seek and effectuate.� (See Courts, Judges and Politics by Walter F. Murphy: ''Some Reflections on the Reading of Statutes'' by Falix Frankfurter).

Further on ascertaining the meaning of ''private forest'' as defined in the Act of 1971, the Court made the following observations:

�If the legislature had intended to use the term ''agricultural crop'' in a wide sense so as to take within its fold all species of trees fruitbearing or otherwise, it would be unnecessary to have the first limb denoting only the cashew or other fruitbearing trees. It may be significant to note that the Legislature in each subclause (A) to (C) has used the words to identify the different categories of crops or trees.�

The Court further observed �It is said, indeed rightly, that in seeking legislative intention, Judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say. Let us compare the wordings in S.3 with those of subclause (C). Under S. 3, subsection (1), private forests vest in Government. Subclause (2), however, excludes from such vesting lands within the ceiling limits applicable to an owner if they are under his personal cultivation. Cultivation for this purpose �includes cultivation of trees or plants of any species�. The explanation to subsection (2) makes this aspect beyond doubt. The lands used for the cultivation of any kind of tree, fruitbearing or yielding only timber or pulp are not vested under subsection (2). The legislature has thus excluded from vesting Sec. 3, subsection (2) the trees of every variety. But while providing for exclusion under subclause (C), the legislature could not have again thought of trees or plants of all kinds. It seems to have considered only fruitbearing trees and not of other species. If the intention was otherwise, the subclause (C) would have been in a different language.�

Defining the distinction between the legislative intention and the purpose or object of the legislation, the Apex Court in the case of Kailash Chand Mahajan said that ''there is a great distinction between the two. Whild the object of legislation is to provide a remedy for the malady, on the contrary, the legislative intention relates to the meaning from the exposition of the remedy as enacted'', and in the same judgment the Court also took into consideration the plea of legitimate expectation in the tenure of appointment and observed that even legitimate expectation cannot preclude legislation.

When different words are used in a statute, it is presumed that the legislature has chosen to make a distinction between the two words, and have been consciously incorporated, with a definite object and meaning.

In the case of Kailash Nath Agarwal and others v. Pradeshiya Industrial & Investment Corporation of U.P. Ltd. and another, (2003) 4 SCC 305, while considering the meaning and scope of the provision of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, where words ''proceeding'' and ''suit'' both were used in the same Section, the Supreme Court found that there was apparent distinction between the expression ''proceeding'' and ''suit'' used in Section 22. Relevant observations are as under:

�There is an apparent distinction between the expressions �proceedings� and �suit� used in Section 22(1). While it is true that two different words may be used in the same statute to convey the same meaning, that is the exception rather than the rule. The general rule is that when two different words are used by the same statute, prima facie one has to construe these different words as carrying different meanings. In Kanhaiyalal Vishindas Gidwani v. Arun Dattatray Mehta, (2001) 1 SCC 78 this Court found that the words �subscribed� and �signed� had been used in the Representation of People Act, 1951 interchangeably and, therefore, in that context the Court came to the conclusion that when the legislature used the word �subscribed� it did not intend anything more than �signing�. The words �suit� and �proceeding� have not been used interchangeably in SICA. Therefore, the reasons which persuaded this Court to give the same meaning to two different words in a statute cannot be applied here.�

The Court also noted that in none of the decisions which were cited before the Court, the word �suit� was defined in a context similar as used in the Sick Industrial Companies (Special Provisions) Act, 1985. The decision cited by the appellant in that case did not relate to the same or similar statutes nor do they seek to define the word �suit� in contradistinction to the word �proceedings�.

In the present controversy, the cases which have been cited by the petitioner to support his plea that tenure of office is nothing else but a condition of service, no decision has been cited where the term ''condition of service� as well as ''tenure of office'' was considered in a context similar to that, as given in the constitutional provision. Those decisions relate to different statutes and conditions of service of government servants, and thus, do not assist the petitioner''s argument.

In B.D.Shetty and others v. Ceat Ltd. and another, (2002) 1 SCC 193, meaning of the expression ''delay��directly attributable to the conduct of such workman'' used in Section 10A (1)(b) of the Industrial Employment (SO) Act, 1946, was under consideration and the question was as to whether the delay is covered by mischief as set out by the respondents.

The Supreme Court interpreting the aforesaid provision, observed as under:

�In the field of interpretation of statutes the Courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have effect. Further, it cannot be said that a word or words used in a statute are either unnecessary or superfluous unless there are compelling reasons to say so looking to the scheme of the statute having regard to the object and purpose sought to be achieved by it. In his view, the use of word �directly� in the provision has to be given meaning and effect in the context of the said provision under the scheme of the Act.�

In The Member, Board of Revenue v. Arthur Paul Benthall, AIR 1956 SC 35, the Supreme Court, while considering the plea that when a person is executing power of attorney in favour of two persons, whether it comprises distinct matters and the duty what is payable thereon, held that �If the intention of the legislature was that the expression ''distinct matters'' in S.5 should be understood not in its popular sense but narrowly as meaning different categories in the Schedule, nothing would have been easier than to say so. When two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sense, and the conclusion must follow that the expression �distinct matters� in S. 5 and �descriptions� in Section 6 have different connotations�.

In Oriental Insurance Co. Ltd. v. Hansrajbhai v. Kodala, AIR 2001 SC 1832, the question was whether the compensation payable under Section 163 A of the Motor Vehicles Act, 1988 as per the structured formula basis is in addition or in the alternative to the determination of the compensation on the principle of fault liability, after following the procedure prescribed under the Act? The Court, interpreting the meaning of the provision relevant for the controversy, observed as under:

�When the Legislature has taken care of using different phrases in different sections, normally different meaning is required to be assigned to the language used by the Legislature unless context otherwise requires. However, in relation to the same subject matter, if different words of different import are used in the same statute, there is presumption that they are not used in the same sense.�

A conspectus of the various cases cited from both the sides leads to the conclusion that two different words used in the same statute or in the Constitutional provision, raise a presumption that they have been used intentionally and have different meaning and connotations, unless the context otherwise requires. Plain and simple language used, is not to be confused by trying to give an interpretation either expansive or inclusive, so as to defeat the very purpose of the legislation or to negate the object and the purpose for which it is enacted.

The terms ''conditions of service'' and ''tenure'' of the State Election Commissioner in office have been deliberately, consciously and intentionally used in Article 243K. The Governor has the power to prescribe both, conditions of service as well as tenure of office. If intention of the aforesaid provision was to include the tenure of office in the condition of service of the State Election Commissioner, there was no occasion to use two separate and distinct words and it was sufficient to have used the only phrase, namely, ''conditions of service''.

Prescribing tenure of office or the conditions of service under the Rules of 1994 and thereafter by amending the same by 2006 and 2007 amendments, straightaway, is referable to the power of the Governor under subclause (2) of Article 243K. When the rule says that no person shall hold the office of the State Election Commissioner beyond 67 years or for that matter 65 years, it does not lay down, in essence, the age of retirement but prescribes a disqualification to continue after the prescribed age aforesaid. This disqualification would be applicable to all the incumbents, whether appointed after the amendment of the rule or even if they were continuing on the date of amendment. Once the holder of a constitutional office stands disqualified either for being appointed or for being continued in office, he cannot be allowed to hold the office any further, if the incumbent is in chair, he will cease to hold the office.

A argument has also been raised by the petitioner that the Rules of 1994 has the heading �Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) Rules, 1994�, which obviously means that they are laying down the conditions of service of the State Election Commissioner and in that very rule tenure of office has also been prescribed. Further, the aforesaid rules have been amended twice; once in the year 2006 and again in the year 2007 but with the same heading and, therefore, it cannot be said that the Governor did not mean to include tenure of office in conditions of service and once tendure has been included in the conditions of service, there cannot be any other interpretation nor any other meaning can be given to the term ''tenure'', given in Article 243K, subclause (2) of the Constitution.

In interpreting the constitutional provision and the rules framed by the Governor under the authority given by the Constitution, the heading of the rule has very little role to play or so to say no role, unless there is some ambiguity, which may stand clarified looking to the statement of object of the rules and for that matter to a limited extent from heading of the rules.

In Oriental Insurance Co. Ltd. (supra), the Apex Court, considering the interpretation and construction of Section 163A in reference to its heading and language, observed that ''�..for interpretation of the words of section to language of the heading cannot be used to control the operation of the section, but at the same time being part of the statute it primafacie furnishes some clue as to the meaning and purpose of Section. In case of ambiguity or doubt heading can be referred to as an aid in construing the provision''.

The heading of a provision or a Section may, in some given cases of doubt, be helpful in construing the words and language used in the Section but the general heading of the rule would still be a very weak and rather unsafe yardstick to find out the real meaning and intention of the words used in the rules. The aforesaid Rules of 1994 and consequently amended Rules of 2007 can be read in two parts; one which lays down condition of service, which includes the eligibility criteria, qualification, appointment, pay and allowances and other terms and conditions as given therein and the other part in which tenure of office of State Election Commissioner has been prescribed.

Merely because the tenure has been prescribed in the aforesaid rules, wherein the nomenclature of the Rule does not say anything about the ''tenure of office'', it cannot be presumed nor can be inferred that the meaning which flows from the aforesaid two terms used in Article 243K, would be rendered nugatory or that they can be given any inclusive meaning or they can be read interchangeably, that too, against the constitutional provision.

Sri Mathur has rightly emphasized that merely because in the heading words ''tenure of office'' has not been separately used, it does not mean that the rule should be read as only for laying down conditions of service and, therefore, would mean tenure also as one of the conditions of service.

Lastly, the plea that the amendment of the rule has been done only with a view to oust the present incumbent, who was appointed by a different political party in power and that such term having been extended by valid amendment made in the year 2006, could not have been curtailed soon after the new Government came into power, can also not be sustained for the reason, that on the change of Government, if the rule has been framed, it would not raise a presumption of mala fide or of any ulterior motive, besides the fact that no such mala fide can be attributed to legislation.

In view of the findings recorded above that the prescription of the tenure of office for holding the office of the State Election Commissioner resulting into cessation of office by the incumbent in chair can neither be taken as removal from office within the meaning of Article 243K subclause (2) nor it is alteration of condition of service to his disadvantage after his appointment and that the Governor had the power to frame such a rule and consequently to amend the rules also, the plea of the petitioner challenging the aforesaid rule, fails.

The apprehension of the petitioner that if such power is allowed to be used in such wild and arbitrary manner, every time when the Government changes and a new ruling party comes into power, it would defeat the very object of Article 243K and would seriously affect the independence of the State Election Commissioner and consequently of the Commission, who is responsible for free, fair and impartial elections, has to be the concern for the framers of law but the Court would not draw any such presumption and cannot be swayed by the hypothetical example that in such a way, tenure can be curtailed even from one year to six months and from six months to three months. Prescribing the term of five years cannot be said to be arbitrary fixation of the tenure of office.

It is also to be noted that initially the Rules of 1994 provided a tenure of five years but just before the petitioner could complete the said tenure, by means of amendment of 2006, it was extended to seven years, thus, giving an additional life to the tenure of present incumbent, namely, the petitioner, for another two years but before the expiry of the aforesaid period of two years, the rule was again amended and present rule was substituted. If the rule can be amended for enhancing the tenure as against the original tenure prescribed, there cannot be any reservation in resubstituting the original rule, by way of amendment.

While interpreting the constitutional provision, the applicability of General Clauses Act is not ruled out. Article 367 of the Constitution says that unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. The power thus, exercised by the Governor, is referable to subclause (2) of Article 243K as well as to Section 21 of the General Clauses Act. It is futile to urge that term of the Election Commissioner can be extended by the rule but neither it can be curtailed nor it can be reduced nor it can be resubstituted as was in the original rules. It is the wisdom and discretion of the Governor to fix the tenure, and unless the rule is hit by any constitutional protection or is manifestly arbitrary and unreasonable, there will be no scope for interference.

It having been found that prescription of tenure of office or for that matter tenure of office is not a condition of service, in view of specific provisions of the Constitution, as enunciated under Article 243K, the prescription of such tenure by rule, can neither be taken as condition of service, nor its alteration, to the detriment of the incumbent after his appointment.

It is also necessary to take note of the fact that though the petitioner has not advanced any argument on the proviso attached to Rule 4, which in the Rules of 1994, provided that no Commissioner shall hold office after he has attained the age of 65 years, which age, on amendment in the year 2006 was prescribed as 67 years and had again been brought to 65 years under the Rules of 2007, the petitioner having crossed the age of 65 years, did incur the said disqualification and was thus, not eligible to continue in office beyond the said age. Prescribing a disqualification by laying down the maximum age for holding the office of State Election Commissioner is not only desirable but is also a necessity.

By means of the Rules of 2007, two amendments have been brought in the then existing Rules, namely, (i) the tenure of office of the State Election Commissioner was fixed as five years and (ii) the age after which a State Election Commissioner shall be disqualified for holding the office has been prescribed as 65 years. These two amendments have been made applicable to the present incumbent also.

Though the petitioner has failed in his challenge to the fixation of tenure of five years, and the consequent reduction/curtailment of his tenure which has not been found to be illegal, arbitrary or without authority and also does not affect any accrued right of the petitioner nor it has been found to be a ''condition of service'', which could not have been altered after his appointment, but there is one more aspect of the matter, viz. he having crossed the age of 65 years, which also denies the petitioner to have any relief from the Court.

Laying down the tenure of five years is a separate issue, whereas prescribing the cutoff age, beyond which a State Election Commissioner can neither be appointed nor can be allowed to continue to hold the office is another separate disqualification and if the petitioner is covered by any of the aforesaid two conditions, he cannot be allowed to continue. It is one thing to say that tenure of office has been curtailed but even if the said tenure had not been curtailed, for argument sake, even then the petitioner could not have been allowed to continue, because he had already crossed the age of 65 years. On reaching the age of 65 years, he ceased to hold the office. There may be cases where the tenure of the State Election Commissioner may be for actual five years as per the present Rule but a person may have been appointed at an age beyond 60 years, such an appointee will have to leave the office on attaining the age of 65 years, irrespective of the fact that his tenure, as prescribed in the Rules, is not yet over.

In Pashupati Nath Sukul case (supra), the Court found that once a disqualification is incurred, there is an automatic cessation from holding office and in the case of Kailash Chand Mahajan (supra), the said view was affirmed, holding that once the disqualification of attaining the age of 65 years is incurred, there is an automatic cessation from holding office.

The petitioner, even if his term had not been curtailed or reduced from seven years to five years, still could not have been allowed to continue in office as soon as he incurred the disqualification of being more than 65 years of age. Therefore, the petitioner cannot validly raise any grievance with respect to the amendment in the tenure of office nor could substantiate his plea of removal from office.

For the aforesaid reasons, there is no merit in the challenge raised. The petition is, therefore, liable to be dismissed and is hereby dismissed. No order as to costs.

Hon''ble Devi Prasad Singh, J.

I have had the advantage of perusing the judgment of my learned brother Justice Pradeep Kant but, while concurring in the conclusion, desire to append a separate opinion since the strands of my reasoning differ, particularly the constitutional mandate of Article 243K of the Constitution of India.

Question, involved in the present writ petition, having great public importance relates to interpretation of Article 243K of the Constitution of India. Whether the reduction of tenure of office of State Election Commissioner through amendment of Rules by the Government does not amount to varying the condition of service and is not an incident amounting to disadvantageous after the appointment?

The petitioner was appointed as State Election Commissioner on 5.12.2001 in pursuance to Rules, namely Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Condition of Service) Rules, 1994 (in short, referred to as ''1994 Rules''). The ''1994 Rules'' have been framed in pursuance to the power conferred by Article 243K of the Constitution of India. According to Rule 4 of the ''1994 Rules'', the Commissioner shall hold office for a term of five years subject to rider that he shall not be entitled to hold office after he or she attains the age of 65 years.

The pay and allowances have been enumerated in Rule 6.

In pursuance to the aforesaid Rules, the petitioner was appointed on the post of State Election Commissioner by the Governor of State in pursuance to the power conferred by Article 243K of the Constitution. The appointment was duly notified on 5.12.2001 by the Chief Secretary of the State, a copy of which is filed as Annexure2 to the writ petition.

Keeping in view the appointment, the tenure of the petitioner''s posting as State Election Commissioner was to expire on 5.12.2006. However, the State Government chooses to extend the tenure of the State Election Commissioner by an amendment notified on 8.12.2006, a copy of which is Annexure3 to the writ petition. The tenure of five years was extended to seven years and the age of superannuation was extended to 67 years by amending Rule 4 of the ''1994 Rules''. Rule was made applicable to the person holding office of the State Election Commissioner including the present incumbent. In pursuance to the said amendment, the petitioner was continuing as State Election Commissioner of the State of U.P.

In the meantime, on account of the recent general election, another Government took over the charge of the office by change of political scenario in the State of U.P. Rule 4 of the Rules (supra) was again amended and notified on 1.6.2007. Again the tenure of the State Election Commissioner was reduced to five years with age of superannuation to 65. In pursuance to the amended rules, one other person Rajendra Bhonwal was appointed as State Election Commissioner. Feeling aggrieved, the present writ petition was filed.

In view of the aforesaid facts, the question for consideration is that whether the proviso of Clause (2) of Article 243K of the Constitution of India which provides conditions of service of the State Election Commissioner shall not be varied to his disadvantageous after his appointment and shall not include the tenure of office which has been mentioned in Clause (2) of Article 243K of the Constitution. For convenience, Article 243K, in its totality, is reproduced as under:

�243K: Elections to the Panchayats: The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.

(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine.

Provided that the State Election Commissioner 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 the State Election Commissioner shall not be varied to his disadvantage after his appointment.

(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by Clause (1).

(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.�

As discussed in the preceding para, in pursuance to the power conferred by Article 243K of the Constitution of India, Rules were framed and notified in the gazette on 23.4.1994. Since the controversy relates to interpretation of rule as well as Article 243K of the Constitution, it shall be appropriate that the original rules may be reproduced in its totality. Accordingly, 1994 Rules as notified in the gazette are reproduced as under:

�Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) Rules, 1994.

English translation of Panchayat Raj Anubhag1, Noti. No.2156/XXIII1949393, dated April 23, 1994, published in U.P. Gazette, Extra, Part 4, Section (Kha), dated 23rd April, 1994, pp.34:

In exercise of the powers conferred by Article 243K of the Constitution read with the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules regulating the appointment and conditions of service to the post of State Election Commissioner in the State Election Commission for Panchayat Raj and Local Bodies in Uttar Pradesh.

CHAPTER I

PRELIMINARY

Short title and commencement (1) These rules may be called the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) Rules, 1994.

(2) They shall come into force at once.

2.Definitions In these rules, unless there is anything repugnant in the subject or context:

(a) �a appointing authority� means the Governor;

(b) �Commissioner� means the Commissioner of the Commission;

(c) �Commission� means the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies);

(d) �Government� means the Government of Uttar Pradesh;

(e) �Governor� means the Governor of Uttar Pradesh.

CHAPTER II

APPOINTMENT

Appointment of Commissioner: The Commissioner shall be appointed by the Governor:

Provided that a person appointed as Commissioner, if he is already in government service, shall not assume office of the Commissioner unless he has resigned or retired from the service in which he was serving.

Term of office: The Commissioner shall hold office for a term of five years:

Provided that no Commissioner shall hold office after he has attained the age of sixtyfive years.

Qualification and eligibility A person to be eligible for appointment to the post of the Commissioner must be an officer of the level of Joint Secretary or above in the Central Government and must have held the post of District Magistrate or Divisional Commissioner and a Senior Administrative post in the Secretariat.

CHAPTER III

PAY AND ALLOWANCES

Pay and allowances (1) A person appointed to the post of Commissioner shall be paid pay and allowances as admissible to him in his parent department.

(2) A person retired from government service and appointed as Commissioner shall have the option to draw his pay and allowances either on the principle of last pay drawn minus the total amount of pension or the pay of Rs.8000 per month and allowances as may be admissible.

(3) The Commissioner shall have the facility of rent free accommodation and if such accommodation is not available, he shall be entitled to house rent allowance at the rates fixed by the Government from time to time in respect of its Group ''A'' employees:

Provided that facility of rent free accommodation shall be available till the Commissioner holds his office, as such, and he shall be bound to vacate the accommodation within a period of one month of his ceasing to hold such office.

CHAPTER IV

MISCELLANEOUS

Leave The Commissioner shall be entitled, to all such leave as is admissible to Group ''A'' employees of the Government.

Pension The Commissioner on attaining the age of superannuation shall be entitled to retirement benefits as admissible to him under the rules or regulations applicable to his parent department.

Medical facilities The Commissioner shall be entitled to such medical facilities as are admissible to Group ''A'' employees of the Government.

Regulation of other matters In regard to the matters not specifically covered by these rules, the Commissioner shall be governed by the rules, regulations and orders for the time being applicable generally to Group ''A'' government servants serving in connection with the affairs of the State.�

The Service Rules were amended extending the tenure of service from five years to seven years or till the age of 67 years by notification dated 8.12.2006 through the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) (First Amendment) Rules, 2006 (in short, First Amendment Rules). For convenience, the same is reproduced as under:

UTTAR PRADESH SHASAN,

PANCHAYATI RAJ ANUBHAG1

In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English translation of notification No.3604/331200693/95T.C.

Notification

No.3604/331200693/95T.C.

In exercise of the powers conferred by Article 243K of the Constitution read with proviso to Article 309 of the Constitution the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh State Election Commision (Panchayat Raj and Local Bodies)(Appointment and Conditions of Service) Rules, 1994.

Uttar Pradesh State Election Commision (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) (First Amendment) Rules, 2006:

(1) These rules may be called the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) (First Amendment) Rules, 2006.

(2) They shall come into force at once.

(3) It shall apply to the person holding the office of the State Election Commissioner including the present incumbent.

In the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) Rules, 1994, in Rule 4:

(a) for the words ''five years'', the words ''seven years'' shall be substituted; and

(b) for the words ''sixty five years'' appearing in the proviso thereto, the words ''sixty seven years'' shall be substituted.

BY ORDER

(AJAY KUMAR JOSHI)

PRAMUKH SACHIV.

After the change of Government, the tenure of seven years has been reduced to five years by subsequent impugned amendment, notified on 1.6.2007 through Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Accointment and Conditions of Service) (Second Amendment) Rules, 2007 (in short, Second Amendment), which for convenience, is reproduced as under:

Uttar Pradesh Shasan

Panchayati Raj Anubhag1

In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English translation of notification No.1285/331200793/93T.C., dated 1 June, 20070727

Notification

No.1285/331200793/93 T.C.

Lucknow: Dated: 1 June, 2007

In exercise of the powers conferred by Article 243K of the Constitution read with the proviso to Article 309 of the Constitution the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) Rules, 1994.

Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) (Second Amendment) Rules, 2007

1(1) These rules may be called the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Conditions of Service) (Second Amendment) Rules, 2007

(2) They shall come into force at once.

(3) It shall apply to the person holding the office of the State Election Commissioner including the present incumbent.

In the Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) Appointment and Conditions of Service) Rules, 1994, for Rule 4, set out in column 1 below the rule as set out in column 2 shall be substituted namely:

Column1

Existing rule

The Commissioner shall hold Office for a term of seven years

Provided that no Commissioner shall hold office after he has attained the age of sixty seven years.

Column2

Rule as hereby substituted

The Commissioner shall hold office for a term of five years:

Provided that no Commissioner shall hold office after he has attained the age of sixty five years.

BY ORDER

(R.K. SHARMA)

PRAMUKH SACHIV�

Mr. Umesh Chandra, learned Senior Counsel appearing on behalf of the petitioner submits that the words, ''condition of service and tenure of office'' used in clause (2) of Article 243K are in conjunction and synonymous to each other. It has been further submitted that in view of the proviso to clause (2) of Article 243K, the tenure of State Election Commissioner cannot be reduced by the impugned Second Amendment. Once the tenure was extended by first amendment, then by the second amendment, it could not have been reduced as it shall amount to vary the service conditions, disadvantageous after appointment. It has been submitted that keeping in view the first amendment done in the rule, it shall be deemed that the petitioner''s tenure for appointment was for seven years right from the very beginning. The using of word, ''after'' in the proviso is indicative of the fact that once a person is appointed on the post of State Election Commissioner, then the State shall lack the power to vary the service conditions which may be disadvantageous and it includes the tenure of appointment. Emphasis has been given by the petitioner''s counsel to beginning words of the proviso contained in Clause (2) of Article 243K with submissions that reduction of tenure by amending the rules amounts to removal from service, hence the impugned second amendment is repugnant to proviso of Clause (2) of Article 243K of the Constitution and is liable to be struck down, being ultra vires to the Constitution of India. According to the petitioner''s counsel, the State Election Commissioner may be removed only in the manner and like ground as Judge of the High Court may be removed. He relied upon the judgments reported in, (2003) 2 SCC 147, Ravinder Pal Singh Sindhu, Chairman, Punjab Public Service Commission, RE; 1970(1) SCC 108, State of Madhya Pradesh and others v. Shardul Singh; (1990) 4 SCC 611, T.N. Seshan, Chief Election Commissioner of India v. Union of India and others; 1992 Supp (2) SCC 351, State of Himanchal Pradesh and another v. Kailash Chand Mahajan and others; (1978) 1 SCC 405, Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others; (2006) 8 SCC 352, Kishansing Tomar v. Municipal Corporation of the City of Ahmendabad and others; 2002(5) SCC 294, Union of India v. Association for Democratic Reforms and others; 1987 (3) SCC 251, Dr. D.C. Saxena v. State of Haryana and others and 1985 (1) SCC 591, S. Sundaram Pillai and others v. V.r. Pattabiraman and others.

On the other hand, learned Addl. Advocate General appearing on behalf of the State Mr. Jaideep Mathur submits that reduction of tenure of appointment by the impugned second amendment cannot be treated as removal; rather it is a cessation of service by fiction of law. Learned Addl. Advocate General also submits that in Clause (2) of Article 243K, the legislature has used the words, ''conditions of service'' and ''tenure of office'' in disjunction dealing with different incident of service. Once, the legislature has used the words, ''tenure of office'' separately, then ''conditions of service'' shall not include the ''tenure of office''. ''Tenure of office'' is governed by PartII of the Rules whereas the ''conditions of service'' are governed by Parts 3 and 4 of the Service Rules. It has also been submitted that using of words., ''condition of service'' in the title of the rule does not mean that it includes the tenure of office. The title or head of the rule shall not create a ground to adjudge that while framing the rule, the State Legislature had provided that condition of service shall include the tenure of office. Learned Addl. Advocate General has relied upon the judgments, reported in (1985) 1 SCC 523, K. Nagaraj and others v. State of Andhra Pradesh and another; (1976) 1 SCC 128, Dwarka Prasad v. Dwarka Das Saraf; AIR 1990 SC 1747, Gwalior Rayons Silk Mfg. (Wvg) Co. Ltd. v. Custodian of Vested Forests, Palghat and another; (2003) 4 SCC 305, Kailash Nath Agarwal and others v. Pradeshiya Industrial & Ingestment Corporation of U.P. Limited and another; AIR 2001 SC 1832, The Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala; (2002) 1 SCC 193, B.D. Shetty and others v. Ceat Limited and another; AIR 1956 SC 35, The Member, Board of Revenue v. Arthur Paul Benthall; 1992 Supp (2) SCC 351, State of Himanchal Pradesh and another v. Kailash Chand Mahajan and others; AIR 1999 SC 1867, M/s. B.R. Enterprises v. State of U.P. and others.

Needless to say that the election of the local bodies of a State is the very important constitutional mandate to be enforced for a healthy democratic system in the country. It is the grass root level election where the peoples elect their representatives from Gram Sabha to block Tehsil Taluka and district level statutory bodies. The persons elected as a member or office bearer of local bodies are in more touch with the people in daily life than the members of the legislative assembly or Parliament. Virtually, the election of the local bodies under Part IX of the Constitution of India is the breeding ground from where the country''s statesmen are nurtured and trained to serve the nation by gradually shifting to State Assemblies and Parliament. Accordingly, it is necessary that the independency and fairness of the State Election Commission should be maintained at all cost. In no way, the State Election Commission may be given lesser importance than the Election Commission of India, constituted under part XV of the Constitution of India. The State Election Commissioner is vested with the same power which the Election Commissioner of India is vested under Art. 324 of the Constitution of India. Mr. Umesh Chandra, learned Senior Counsel submits that for the independence of the State Election Commission, it is necessary that the executive should not be permitted to interfere in any manner whether it is service condition of the State Election Commission or its employees or any other related issue.

The preamble of the Constitution proclaims that we are a democratic representative and democracy being basic feature of our constitutional set up the free and fair election of not only to the legislative bodies but also of the panchayati system be held in just and fair manner and only that would guarantee the growth of a healthy democracy in the country. That is why, while introducing Panchayati system in the country by amending various provisions contained in Part IX and PartIX A of the Constitution, the Parliament has ensured that the State Election Commission must be vested with all powers which the Election Commission of India possesses. Accordingly, to ensure the purity of election process, the responsibility of the free and fair election in the Panchayat system has been entrusted to the State Election Commission making it an independent body. It is inherent in the democratic system that the agency which is entrusted to the object of holding election either to panchayat, local bodies or legislatures should be fully insulated so that it can function as an independent agency free from extraordinary pressures of party in power or the executive of the day. That is why, under Art. 243K of the Constitution of India, the State Election Commission, as a permanent body has been created having power of superintendence, direction and control of entire election process in the State in the like manner as the Election Commission of India possess. The provisions contained in Articles 324 and 243K are identical and may be termed as pari materia provision.

The observations of the Supreme Court in the case of T.N. Seshan, Chief Election Commissioner (supra) pointing out the necessity of an independent Election Commission are reproduced as under:

�����..In order to ensure the purity of the election process it was thought by our Constitutionmakers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is inherent in a democratic setup that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day. This objective is achieved by the setting up of an Election Commission, a permanent body, under Article 324(1) of the Constitution. The superintendence, direction and control of the entire election process in the country has been vested under the said clause in a commission called the Election Commission�����

Needless to say that in view of the catena of judgments of the Apex Court while interpreting Art.324 of the Constitution of India including the T.N. Seshan''s case (supra), the Election Commissioner once appointed should not be removed before expiry of his or her tenure. The Chief Election Commissioner of India possess the same privilege which the Judges of the Supreme Court possess so far as the tenure and appointment is concerned. Though the other members of the Election Commission of India are also protected and ordinarily cannot be removed before expiry of their tenure but on the recommendations of the Chief Election Commissioner in exceptional cases, they can be removed but such recommendation of the removal must be based on intelligible and cogent consideration. However, the Chief Election Commissioner of India cannot exercise such power in an arbitrary manner, otherwise it would destroy the independence of Election Commission. The protection of tenure to Election Commission is necessary for its efficient and independent functioning.

In the case of Mohinder Singh Gill (supra), the Constitution Bench of the Hon''ble Supreme Court has noted the importance of Election Commission in the following words:

�The Election Commission is a highpowered and independent body which is irremovable from office except in accordance with the provisions of the Constitution relating to the removal of Judges of the Supreme Court and is intended by the framers of the Constitution to be kept completely free from any pulls and pressures that may be brought through political influence in a democracy run on party system. Once the appointment is made by the President, the Election Commission remains insulated from extraneous influences, and that cannot be achieved unless it has an amplitude of powers in the conduct of elections of course in accordance with the existing laws. But where these are absent, and yet a situation has to be tackled, the Chief Election Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently, in all matters relating to the conduct of elections, and see that the election process is completed properly, in a free and fair manner. �An express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty��..That which is clearly implied is as much a part of a law as that which is expressed.�

In the case of Kishansing Tomar (supra), Hon''ble Supreme Court reiterated in the following terms the importance of panchayat election holding that the State Government must recognize the significance of the State Election Commission being constitutional body:

�22. In our opinion, the entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution�������

�23. In terms of Article 243K and Article 243ZA (1) the same powers are vested in the State Election Commission as the Election Commission of India under Article 324. The words in the former provisions are in pari materia with the latter provision.�

�25. From a reading of the said provisions it is clear that the powers of the State Election Commission in respect of conduct of elections is no less than that of the Election Commission of India in their respective domains. These powers are, of course, subject to the law made by Parliament or by the State Legislatures, provided the same do not encroach upon the plenary powers of the said Election Commissions.�

�26. The State Election Commissions are to function independent of the State Governments concerned in the matter of their powers of superintendence, direction and control of all elections and preparation of electoral rolls for, and the conduct of, all elections to the panchayats and municipalities.�

�28. Also, for the independent and effective functioning of the State Election Commission, where it feels that it is not receiving the cooperation of the State Government concerned in discharging its constitutional obligation of holding the elections to the panchayats or municipalities within the time mandated in the Constitution, it will be open to the State Election Commission to approach the High Courts, in the first instance, and thereafter the Supreme Court for a writ of mandamus or such other appropriate writ directing the State Government concerned to provide all necessary cooperation and assistance to the State Election Commission to enable the latter to fulfil the constitutional mandates.�

To maintain the independence of the Election Commission and for the purity of system and healthy democracy, the Apex Court from time to time ruled that once the election is notified, the Court should loath to interfere election process and outcome of the election shall not be called in question except by election petition presented to such authority and in such manner as is provided by and under law made by appropriate legislature (Mohinder Singh Gill''s case, para 128).

Keeping in view the settled proposition of law, the right, duties and liabilities of the State Election Commission is at par with the Election Commission of India, in view of Kishansing Tomar''s case (supra). It is worthwhile that the provisions contained in Article 243K and the rules in question should be interpreted.

Interpretation of Article 243K of the Constitution of India and the Rules

A plain reading of Article 243K shows that under Clause (2), the Legislature has used the words, ''conditions of service and tenure of office'' of the State Election Commisioner which should be governed by rules framed by the Governor of a State. However, the first part of the proviso of clause (2) provides that the State Election Commissioner shall not be removed except on the like ground as a Judge of the High Court and the condition of service of the State Election Commissioner shall not be varied to his or her disadvantage after his/her appointment. The word, ''after'' used by the legislature to their wisdom provides constitutional umbrella to the State Election Commissioner. The first and second part of proviso of Clause (2) of Art. 243K has been linked with each other by use of word ''and''. A combined reading of proviso indicates that the legislature to their wisdom were conscious not only to service benefit but also to the tenure of office of the State Election Commissioner. Art. 367 of the Constitution of India provides that the Constitution may be interpreted in the manner the Acts and Statutes of the Legislature of the Dominion of India are interpreted.

It is settled law that every word of statute should be given a meaning. While interpreting a statutory provision the entire section or whole of the statute, as the case may be, should be considered. According to Maxwell on the Interpretation of Statutes (12th Edition page 36) any construction which may leave without affecting any part of the language of a statute should ordinarily be rejected.

Relevant portion from Maxwell on the Interpretation of Statutes (12th Edition page 36) is reproduced as under:

�A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter session to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated.�

In view of above, the Court should always avoid interpretation, which would leave any part of the provision to be interpreted without effect. While doing so every clause of a statute is to be construed with reference to the context and other clauses of the Act to make a consistent enactment of the whole statute. According to Maxwell (supra at page 47), statutory language should not be read in isolation but in its context.

While referring a decision of House of Lord reported in AG v. HRH Prince Ernest Auqustus, 1957 (1) All ER 49 (HL) in a famous treatise Principles of Statutory Interpretation by Justice G.P. Singh, the views of Lord Tucker has been discussed with approval as under (9th Edition page 34):

�In an appeal before the House of Lords, where the question was of the true import of a statute, the AttorneyGeneral wanted to call in aid the preamble in support of the meaning which he contended should be given to the enacting part, but in doing so was met by the argument on behalf of the respondent that where the enacting part of a statute is clear and unambiguous, it cannot be controlled by the preamble which cannot be read. The House of Lords rejected the objection to the reading of the preamble. Although, ultimately it came to the conclusion that the enacting part was clear and unambiguous. VISCOUNT SIMONDS (LORD TUCKER agreeing) in that connection said: �I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense as including not only other enacting provisions of the same statute, but is preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy.�

Learned author (supra) again proceeded to consider the judgment of Australian High Court and views of Lord Steyn in a case reported in 2002 (4) All ER 654, R v. National Asylum Support Service, (page 35) to quote:

�As rightly pointed out by the High Court of Australia, �the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses context in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate meansone may discem the statute was intended to remedy. LORD STEYN recently expressed the same view as follows: �The starting point is that language in all legal texts conveys meaning according to the circumstance is which it was used. It follows that context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen.�

Thus, the exposition ''ex visceribus actus'' is a long recognized rule of construction. Words in a statute often take their meaning from the context of the statute as a whole. They are, therefore, not to be considered in isolation. Hon''ble Supreme Court in a case reported in, �AIR 1992 SC 1, Mohan Kumar Singhania v. Union of India� has proceeded to hold as under:

�However, it is suffice to say that while interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, were are bound to construe them in their ordinary sense with reference to other clauses of the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statute/Rules/regulations relating to the subject matter. Added to this, in construing statute, the Court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and underlying intendment of the said statute and that every statute is to be interpreted about any violence to its language and applied as far as its explicit language admits consistent with the established rules of interpretation.�

The aforesaid settled rule of interpretation has been affirmed by the Apex Court from time to time in various cases including 1974 (1) SCC 596, M/s. Gammon India Ltd and others v. Union of India and others (para 19); AIR 1978 SC 995, M/s. Punjab Beverages Ltd. Chandigarh v. Suresh Chand and another (Para 5); AIR 2002 SC 829, Kailash Chandra and another v. Mukundi Lal and others (para 10) and AIR 2000 SC 66, Grasim Industries Ltd. and another v. State of M.P. and (1985) 1 SCC 591, S. Sundaram Pillai and others v. V.R. Pattabiraman and others.

PROVISO

While interpreting the proviso to Clause (2) of Art. 243K of the Constitution of India, it should be noted that the Parliament had expanded the constitutional protection engrafting Clause (2) of Art. 243K by providing the proviso. While the Legislature conceivably thought that independence of State Election Commission should be preserved and protected and to dispel the confusion they have put an embargo on the rule making power of the State Legislature in the form of proviso.

The settled proposition of law relating to statutory construction of provisos assigned many functions and the Court should be selective having regard to text and context of a statute. The proviso should be limited to the subject matter of enacting clause. It is settled rule of construction that the proviso must, prima facie be read and considered in relation to principal matter to which it has been engrafted as proviso. The proviso should not be treated to be separate and independent enactment but it correlates to the contents of the original section. They cannot be read as divorced from their context.

The proviso is being added in a Section to qualify or create an exception to the original enactment. It qualifies the generality of the main enactment by providing an exception. LORD MACMILLAN in a case reported in AIR 1944 PC 171, Madras & Southern Maharatta Rly. Co. Ltd. v. Bezwada Municipality held that:

�The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case.�

Hon''ble Supreme Court had followed the proposition of Madras & Southern Maharatta Rly (supra) in a case reported in AIR 1959 SC 713, CIT, Mysore etc. v. Indo Mercantile Bank Ltd., in the following words:

�The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment.

It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso�.

It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.�

The aforesaid proposition has again been followed by Hon''ble Supreme Court in a case reported in AIR 1961 SC 1596, Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yogral Sinha.

However, Hon''ble Supreme Court in the case reported in (1976)1 SCC 128, Dwarka Prasad v. Dwarka Das Saraf, held that though the proviso correlates to the subject matter of enacting clause but the golden rule is not to read it in isolation but the whole section should be read inclusive of proviso. Relevant portion from the judgment of Dwarka Prasad''s case (supra) is reproduced as under:

�18����.If the rule of construction is that prima facie a proviso should be limited in its operation to the subjectmatter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually thros light on each other and result in a harmonious construction.

The proper course is to apply the borad general rule of construction which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest.

The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. (Maxwel on Interpretation of Statutes, 10th Edn. P.162).�

Thus the purpose of providing proviso in Clause (2) of Art. 243K of the Constitution seems to give more strength to State Election Commission so that they may not carry out the constitutional mandate under pressure of political bosses or executive.

THE WORD, ''AND''

In view of the settled proposition of law relating to interpretation of statute, which is also applicable to interpret Constitution keeping in view Article 367 of the Constitution of India, Article 243K and the Service Rules in question call for interpretation. The Parliament had used the word, ''and'' thrice in clause (2) of Art. 243K of the Constitution of India. In case, it is held that ''and'' has been used in disjunction in the main section and the proviso of Art. 243K of the Constitution of India, then the ''conditions of service'' may exclude the ''tenure of appointment'' but in case it is interpreted that the word, ''and'' has been used in conjunction, then State Legislature shall not be competent to amend the service rule which may amount to reduction of tenure as it shall go against the letter and spirit of Clause (2) of Art. 243K of the Constitution of India. Apart from this, in case it is held that reduction of tenure is not permissible on account of the fact that the State Election Commissioner may be removed like the Judges of the High Court, then also, the State Legislature shall not be competent to amend the rule keeping in view the mandate of Art.243K of the Constitution of India. It also reflects from the provisions contained in Clause (4) of Art.243K of the Constitution of India.

Clause (4) of Art. 243K of the Constitution of India puts an embargo on the powers of the State Legislature to exercise power with respect to all matters relating to or in connection with the election of panchayat and provides that State Legislature cannot exercise power which may travel beyond the constitutional mandate enshrind in Part IX of the Constitution. Let us first consider the dictionary meaning of ''and''. According to The Law Lexicon Dictionary by P. Ramanatha Aiyar''s, ''and'' has been defined as under:

�And (Abbr. &). A particule joining words and sentences, and expressing the relation of connection or addition; as well as; this word is frequently expressed by the abbreviation ''&''. ''This style of abbreviation has come down to us sanctioned by age, and good use for perhaps centuries, and is used even at this day in written instruments, in daily transactions, with such frequency that it may be said to be a part of our language when it is written''. (Per CUR. In Brown v. State, 16 Tex. App. 245, 247; 2 Cyc. 287).�

In stround''s Judicial Dictionary, 3rd Edn., Vol. 1, it is stated at p.135:

�''And'' has generally a cumulative sense, requiring the fulfillment of all the conditions that it joins together, and herein it is the antithesis of OR. Sometimes, however, even in such a connection, it is, by force of a context, read as ''or''.�

While dealing with the topic ''OR'' is read as AND, and vice versa'' Stroud says in Vol. 3, at p.2009:

�You will find it said in some cases that ''or'' means ''and''; but ''or'' never does mean ''and''.�

Similarly, in Maxwell on interpretation of Statutes, 11th Edn. Pp.22930, it has been accepted that ''to carry out the intention of the legislature, it is occasionally found necessary to read the conjunctions ''or'' and ''and'' one for the other''. The word, ''or'' is normally disjunctive and ''and'' is normally conjunctive, but at times they are read as vice versa. As Scrutton L.J. said in Green v. Premier Glynrhonwy State Co. (1928) 1 KB 561 at p.568, ''you do sometimes read ''or'' and ''and'' in a statute� ���But you do not do it unless you are obliged, because ''or'' does not generally mean ''and'' and ''and'' does not generally mean ''or''. As Lord Halsbury L.C. observed in Mersey Docks & Harbour Board v. Handerson, (1988) 13 AC 595 (603) the reading of ''or'' as ''and'' is not to be resorted to ''unless some other part of the same statute or the clear intention of it requires that to be done�. The substitution of conjunctions, however, has been sometimes made without sufficient reasons, and it has been doubted whether some of cases of turning ''or'' into ''and'' and vice versa have not gone to the extreme limit of interpretation.

In Oxford Advanced Learner''s Dictionary by A.S. Homby, Sixth Edition, page 40, ''and'' has been defined as under:

�And/or conj. (informal) used when you say that two situations exist together, or as an ALTERNATIVE to each other: There is no help for those with lots of luggage and/or small children.�

In Poucher v. State, 287 Ala. 731, 240 So. 2d 695, it was held that ''And/or'' means either or both of. In Bobrow v. U.S. Casualty Co., 231 AD 91, 246 NYS 363, (Black''s), ''And/or'' has been defined as under:

�When expression ''and/or'' is used, that word may be taken as will best effect the purpose of the parties as gathered from the contract taken as a whole, or, in other words, as will best accor with the equity of the situation.�

The Patna High Court in a case, reported in AIR 1962 Pat 28, 34, Mukteshwar v. Ramkawal Rai held that two words ''and'' and ''or'' are sometimes used synonymously and in the same sense. That would depend on the context and meaning of other provisions in the same statute or document.

Stround''s meaning of ''and'' as given in the Stround''s Judicial Dictionary and Maxwell on Interpretation of Statutes has been relied upon by the Apex Court in a case, reported in AIR 1980 SC 360, Municipal Corporation of Delhi v. Tek Chand Bhatia.

In AIR 1968 SC 1450, Ishwar Singh Bindra v. State of U.P. again the Supreme Court has relied upon the Stround''s Judicial Dictionary and held that ''and'' is being used in cumulative sense to indicate objectiveness. However, sometime it indicates ''or'' i.e. disjunction which shall be depend upon the reference of context.

In (1984) 2 SCC 183, R.S. Nayak v. A.R. Antulay, the Constitution Bench of the Supreme Court had interpreted the word ''and'' in conjunction. Relevant portion from the case of R.S. Nayak (supra) is reproduced as under:

�45����The use of the expression ''or'' does appear to us to be a disjunctive as contended on behalf of the respondent. Depending upon the context, ''or'' may be read as ''and'' but the Court would not do it unless it is so obliged because ''or'' does not generally mean ''and'' and ''and'' does not generally mean ''or''. (See Green v. Premier Glynrhonwy Slate Company Limited, Babu Manmohan Das Shah v. Bishun Das, Kamta Prasad Aggarwal v. Executive Officer, Ballabgarh and several others which we consider it unnecessary to enumerate here.)�

In AIR 1987 SC 514, State of West Bengal v. Saran Kumar Sen, the Supreme Court held that the word ''and'' has got cumulative effect.

Similar construction has been given by the Supreme Court in one other case, reported in (1986) 2 SCC 512, M. Satyanarayana v. State of Karnataka and another, their Lordships of Apex Court while interpreting the rule of admission in medical college of the State of Karnataka, held that in case expression ''and'' is read independently. It would defeat the rational behind the rule and shall trustrate the intention and purpose of legislature. Hon''ble Supreme Court further held that a statute cannot be construed merely by giving it grammatical meaning and it should be constructed in such a way that it may give effect to the intention and purpose of legislature. Accordingly, it was held that ''and'' has generally a cumulative effect, requiring the fulfillment of all the conditions provided in the rules in different context. Relevant portion from M. Satyanarayana''s case (supra) is reproduced as under:

�5. It is the expression ''and'' in clause (a) is read independently then there was no need for him to suffer at all and mere participation would be enough to make him a political sufferer. That would defeat the rational behind the rule. It would, therefore, frustrate the intention and purpose of the legislature. The expression ''and'' in these circumstances cannot be read disjunctively. It is not possible to hold that clause (a) should be read independently of clause (b). A statute cannot be construed merely with reference to grammar. Statute whenever the language permits must be construed reasonably and rationally to give effect to the intention and purpose of the legislature. The expression ''and'' has generally a cumulative effect, requiring the fulfillment of all the conditions that it joins together and it is the antithesis of ''or''. In this connection reference may be made to A.K. Gopalan v. State of Madras. See also the observations of this Court in Ishwar Singh Bindra v. State of U.P.�

While considering Section 5 of the TADA Act, 1987 and interpreting the words ''Arms and ammunition'', their Lordships of the Supreme Court in a case reported in AIR 1993 SC 1212 Paras Ram v. State of Haryana, held that it should be given cumulative effect and in case dealt separately, it shall frustrate the legislative intent and frustrate the purpose and object of the Act to amend the rule which may amount to reduction of tenure of State Election Commissioner.

In view of the settled proposition of law, it may be held safely that the Parliament has used the word, ''and'' in Clause (2) of Article 243K consciously giving it cumulative effect to protect the independence of State Election Commission at par with the Election Commission of India. Accordingly, the word, ''and'', used in Clause (2) as well as in its proviso should be read in conjunction and State Legislature seems to be incompetent to amend the rule which may amount to reduction of tenure of State Election Commissioner.

PURPOSIVE INTERPRETATION:

As held by Hon''ble Supreme Court in a catena of judgments, including the recent one of Kisansing Tomar''s case (supra) that the State Election Commission is vested with the same power as the Election Commission of India possess and the provisions contained in Art. 243K are pari materia and it is the duty of the Election Commission of India and the State Election Commission to conduct election in a just and fair manner. The Election Commission must discharge its constitutional obligation independently and effectively without being influenced by political party in power or the executive. Free and fair election is the basic structure of our Constitution. Keeping this constitutional mandate, Art. 243K should be interpreted. The purpose is, not only the Election Commission of India but also the State Election Commission should discharge its constitutional obligations independently without fear of hanging sword on their head.

Though in the present case, the term was extended from five to seven years by first amendment but by second amendment, it has been reduced to five years. Judicial notice may be taken that after change of Government, the term of other constitutional functionaries, office bearers of local bodies and corporations are reduced on one or the other ground to lesser period than for which they were appointed or selected originally. Such situation should be avoided by all means and costs so far as office of the State Election Commissioner is concerned. Whether Art. 243K should be interpreted in such a manner which may defeat its very purpose to provide independence to the State Election Commission?

More than 450 years ago, purposive construction which is also called ''mischief rule'' was postulated. In Heydon''s case (1584) 3 Co. Rep. 7a.p. 7b : 76 ER 637), it was held that when the material words are capable of bearing two or more constructions the most firmly established rule for construction of such words ''of all statutes in general is the rule laid down in Heydon''s case which has ''now attained the status of a classic. Now the rule is also known as purposive construction or mischief rule. The rule directs that the Court must adopt that construction which ''shall suppress the mischief and advance the remedy�.

In the case reported in AIR 1955 SC 661 at page 674, Bengal Immunity Co. v. State of Bihar, the then Chief Justice of India Justice S.R. Das while upholding the applicability of mischief rule by purposive construction in Indian context held that the Heydon''s case is a sound rule of construction of a statute formally established in England as far back as in 1584 A.D. However, the Law Commission of United Kingdom in 1969 disapproved the use of term ''mischief'' being archaic and preferred a ''purposive'' approach to construction [�Statutory Interpretation�, by Cross, 3rd Edition, pp. 17, 18]. Hon''ble Supreme Court had applied purposive construction in catena of judgments vide AIR 1957 SC 907, Kanailal Sur v. Paramnidhi Sadhukhan; AIR 1987 SC 1454, Utkal Contractors & Joinery Private Limited and others etc. v. State of Orissa and others; AIR 2001 SC 1832, The Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala; AIR 1975 SC 2260, Carew and Company Limited v. Union of India, Respondent. Tata Engg. & Locomotive Co. Limited. Intervener; AIR 1986 SC 1499, M/s. Girdhari Lal & Sons v. Balbir Nath Mathur and others; AIR 1988 SC 2239, U.P. Bhoodan Yagna Samiti, U.P. v. Braj Kishore and others etc.

Hon''ble Supreme Court in the case reported in AIR 1990 SC 123, Tinsukhla Electric Supply Co. Limited v. State of Assam and others, ruled that the provisions of statute must be construed as to make it effective and operative, on the principle ''ut res majis valeat quam periapt''. To reproduce relevant portion from the case of Tinsukhia (supra):

�49. The Courts strongly lean against any construction which tends to reduce a Statute to a futility. The provision of a Statute must be so construed as to make it effective and operative, on the principle ''ut res majis valeat quam periat''. It is, no doubt, true that if a Statute is absolutely vague and its language wholly intractable and absolutely meaningless, the Statute could be declared void for vagueness. This is not in judicialreview by testing the law for arbitrariness or unreasonableness under Art. 14; but what a Court of construction, dealing with the language of a Statute, does in order to ascertain from, and accord to, the Statute the meaning and purpose which the legislature intended for it����

In the case of R.S. Nayak (supra), the Constitutional Bench of Hon''ble Supreme Court had applied ''purposive construction'' while interpreting the provisions contained in Prevention of Corruption Act, 1947. Hon''ble Supreme Court held that where two construction is possible for a provision, it would be duty of the Court to adopt that construction which would advance the object underlying the Act. Relevant portion is reproduced as under:

�18�����Indisputably, therefore, the provisions of the Act must receive such construction at the hands of the court as would advance the object and purpose underlying the Act and at any rate not defeat it. If the words of the statute are clear and unambiguous, it is the plainest duty of the court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the statute would be selfdefeating. The court is entitled to ascertain the intention of the Legislature to remove the ambiguity by constructing the provision of the statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which Legislature enacted the statute. Thus rule of construction is so universally accepted that it need not be supported by precedents. Adopting this rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the court to adopt that construction which would advance the object underlying the Act namely, to make effective provision for the prevention of bribery and corruption and at any rate not defeat it.�

It should not be forgotten that the main purpose of the Constitution is to create a welfare State and for welfare State, Independence of State Election Commision is necessary. Even by applying the doctrine of ''pith and substance'' vide AIR 1957 SC 699, State of Bombay v. R.M.D. Chamar Bangwala, a combined reading of Clauses (1) to (4) of Art. 243K indicates that the constitutional protection does not relate only to service benefits but also to the tenure of service.

In AIR 1975 SC 2260, Carew and Company Limited v. Union of India, Respondent, Tata Engg. & Locomotive Co. Limited. Intervener while holding that two interpretations are feasible from the language of a statute, the one advancing the remedy should be preferred, Hon''ble Mr. Justice Krishna Iyer said that law should be treated as a pragmatic instrument of social order and interpretative effort must be imbued with the statutory purpose. To quote from Carew and Company Limited (supra):

�20. The law is not ''a brooding Omnipotence in the sky'' but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammar is a good guide to meaning but a bad master to dictate. Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical wisdom when he observed (Massachusetts S & Insurance Co. v. U.S. (1956) 352 U.S. 128 at p. 138):

�There is no surer way to misread a document than to read it literally.�

�23. If the language used in a statute can be construed widely so as to salvage the remedial intendment, the Court must adopt it. Of course, if the language of the statute does not admit of the construction sought, wishful thinking is no substitute and then, not the Court but the legislature is to blame�����..To repeat for emphasis, when two interpretations are feasible, that which advances the remedy and suppresses the evil, as the legislature envisioned, must find favour with the Court. Are there two interpretations possible? There are, as I have tried to show and I opt for that which gives the law its claws.�

Keeping in view the Apex Court''s judgment in Dwarka Prasad''s case (supra), if the dominant intent of the legislature is seen, then it would reveal that the purpose of restriction imposed by Art. 243K is to preserve and protect the office of the State Election Commission so that it may discharge its constitutional duty of holding free and fair election in the State.

Learned Additional Advocate General while relying upon the case of Oriental Insurance Company Limited (supra) submitted that in case different words of different import are used in the same statute, then they should not be held to be used in the same sense. The case of Oriental Insurance does not seem to extend any help to interpret otherwise than, as interpreted hereinabove of Art. 243K is concerned.

The case of Gwalior Rayons Silk Mfg. (wvg) Co. Ltd. (supra) deals the pari materia provision as well as lays down that when the legislation seeks to obviate some mischief deals with different facts and circumstances. Reliance placed by learned Additional Advocate General on the Apex Courts judgment, Member, Board of Revenue (supra) does not seem to cover the present controversy. In the case of The Member, Board of Revenue, Hon''ble Supreme Court while interpreting relevant provisions held that when two words of different import are used in two consecutive provision, then they should not be given cumulative effect and understood in the same sense. However, in the present case, the word, ''and'' used by Legislature does not reveal that it has been used with different import; rather it has been used in the same provision, i.e. Clause (2) of Article 243K to put a rider over the State Legislature while laying down service condition of the State Election Commission.

Learned Addl. Advocate General has rightly relied upon the Apex Court''s judgment in B.D. Shetty''s case (para 11) while making submission that every part of the statute should be given effect. Even applying the principle of B.D. Setty''s case, we cannot ignore using of word, ''and'' thrice as well as use of word, ''after'' while protecting the office of the State Election Commission.

The Legislature to their wisdom has used the word, ''after'' in the proviso of Clause (2) of Art. 243K of the Constitution of India indicating therein that the service condition of the State Election Commissioner shall not be varied to disadvantage after his or her appointment. It is settled principle of law that once the tenure prescribed by a statute is amended and it is reduced or increased within the constitutional frame, then it shall be deemed to exist in the statute right from the very beginning. Accordingly, once by the first amendment, the tenure of State Election Commission was increased to seven years, then by fiction of law, it shall be presumed that the petitioner was appointed for seven years in accordance with rules. Since Art.243K particularly Clause (2) and (4) puts an embargo on the power of the State Legislature not to do anything which may be disadvantageous to the State Election Commission (treating it with cumulative effect), the State Legislature was not empowered to reduce the service tenure to five years. In case it is held that the State Legislature has got power to reduce the term of State Election Commissioner, as being done in other field, then it may be reduced the original tenure to lesser period by the Government but it shall frustrate the very purpose of rider imposed by Clause (2) and (4) of Art. 243K of the Constitution of India. No Election Commission shall be able to discharge its constitutional obligation in a free and fair manner under the present political scenario of the country with a sword hanging over head relating to tenure of service''.

THE WORDS, ''SERVICE CONDITIONS''

Next question, which calls for interpretation is the words, ''service condition''. Hon''ble Supreme Court in a case, reported in 1970(1) SCC 108, State of Madhya Pradesh and others v. Shardul Singh, held that the words, ''condition of service'' has got wide import and it includes dismissal or removal. Relevant portion from the judgment of Shardul''s case is reproduced as under:

�One of the powers conferred under this proviso is to make rules regulating the conditions of service of persons appointed to civil services of the Union or the State as the case may be. The expression �conditions of Service� is an expression of wide import. As pointed by this Court in Pradyat Kumar Bose v. The Hon''ble Chief Justice of Calcutta High Court, the dismissal of an official is a matter which falls within ''conditions of service'' of public servants. The Judicial Committee of the Privy Council in North West Frontier Province v. Suraj Narain Anand, took the view that a dismissal is a condition of service within the meaning of the words under Section 243 of the Government of India Act, 1935. Lord Thankerton peaking for the Board observed therein:

�apart from consideration whether the context indicates a special significance to the expression ''conditions of service'' their Lordships are unable in the absence of any such special significance, to regard provisions which prescribed the circumstances under which the employer is to be entitled to terminate the service as otherwise than conditions of the service, whether these provisions are contractual or statutory; they are therefore of opinion that the natural meaning of the expression would include such provision.�

In P. Batakotaiah v. The Union of India and others, this Court proceeded on the basis that a rule provising for the termination of the service of a raily official can be made in exercise of the powers conferred on the Government by Sections 241(2), 247 and 263(3) of the Government of India Act, 1935.

The expression ''conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like extension, etc.�

Similar proposition of law is borne out from the judgment of the Apex Court in the case of Dr. D.C. Saxena (supra), relied upon by the petitioner''s counsel and also from the case of K. Nagraj (supra), referred by the learned Additional Advocate General.

Mr. J.N. Mathur, learned Addl. Advocate General referred the meaning of ''tenure'' and ''condition of employment'' as given in Black''s Law Dictionary. According to the Black''s Law Dictionary, the tenure is a right, term, or mode of holding or occupying, and ''tenure of an office'' means the manner in which it is held, especially with regard to time. The ''term of office'' has been defined as duration of holding public or private office. ''Condition of employment'' in Black''s Law Dictionary has been defined as qualification required for a particular job.

Even if these two words have got different meaning, since they have been linked by using the word, ''and'', they reflect cumulative effect and should be interpreted accordingly. Moreover, as held by the Apex Court (supra), the dictionary meaning of the word should be interpreted with reference to context and not as a gospel truth.

So far as K. Nagraj''s case (supra), relied upon by learned Addl. Advocate General, is concerned, it relates to reduction of age of superannuation of government servant from 58 to 55 years by changing the regulation by the State Government issuing ordinance. Hon''ble Supreme Court held that the reduction of age of retirement from 58 to 55 years shall not be hit by Arts.14 and 16 of the Constitution of India and it cannot be termed to be arbitrary and unreasonable. The promptitude or speed with which a decision is taken shall not be indicative of unreasonableness or arbitrariness. Their Lordships further held that reduction of age of superannuation corelates to service conditions and the State has got right to decide the age of retirement of the employees. Action of the State Government cannot be held to be arbitrary only because a decision was taken immediately on the assumption of the office by New Government. It was further held by the Court that since decision for reduction of age was taken on the basis of the report of the various commissions (para 28), it cannot be held to be irrational and has got reasonable nexus with the object it seeks to achieve. However, it shall be worthwhile to note that their Lordship in the case of K. Nagarj (supra) held that the age of retirement is a condition of service. To reproduce relevant portion:

�29����.But, apart from this position, we find it difficult to appreciate how the retirement of an employee in accordance with law or rules regulating his conditions of service can amount to his ''removal'' from service. It is wellsettled that Art.311(2) is attracted only when a civil servant is reduced in rank, dismissed or removed from service by way of penalty, that is to say, when the effect of the order passed against him in this behalf is to visit him with evil consequences�����.�

It was further held in the case of K. Nagraj (supra) that the removal from service on account of reduction in age of superannuation by amending rules cannot be termed as termination of service (para 29).

Keeping in view the fact the words have been interpreted in cumulative sense, though they denote different meaning, the ''service conditions'', used in Art. 243K of the Constitution of India should be interpreted in the manner covering the tenure of office as well as other service benefits.

There is one more reason why the service condition should be interpreted covering tenure of office of the State Election Commission. While framing the service rule in question, the State Legislature in the head note/title of the rule used the words, ''Uttar Pradesh State Election Commission (Panchayat Raj and Local Bodies) (Appointment and Condition of Service) Rules, 1994''. Here the construction of word, ''and'' used in service rule denotes cumulative effect keeping in view the catena of judgments referred hereinabove, particularly the case of Parasnath (supra).

Again while revealing the source of power for framing of rule, the State Legislature has used the words, ''appointment and condition of service''. To quote:

�In exercise of the powers conferred by Article 243K of the Constitution read with the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules regulating the appointment and conditions of service to the post of State Election Commissioner in the State Election Commission for Panchayat Raj and Local Bodies in Uttar Pradesh.�

Once the State Legislature themselves have used the words, ''appointment and service conditions'' excluding the words, ''tenure of service'', then while interpreting the provision of Clause (2) of Art.243K, no other meaning should be assigned to except that it has got cumulative effect and service conditions includes tenure of appointment and other service benefits.

Much reliance has been placed by the learned Addl. Advocate General on the case of Oriental Insurance Company Limited (supra) to submit that the head note or title of a section furnishes only some clue and it may not be used to control operation of section. However, a close and careful reading of relevant portion from Oriental Insurance Company (para 19) indicates that a title or head of a section may be used to remove a doubt while interpreting the provision. For convenience, relevant portion from the judgment of Oriental Insurance Company Limited (supra) is reproduced as under:

�19. Lastly, for interpretation and construction of Section 163A, we would refer to its heading and language. The heading is ''Special provisions as to payment of compensation on structured formula basis''. At the outset, we would make it clear that for interpretation of the words of section to language of the heading cannot be used to control the operation of the section, but at the same time being part of the statute it prima facie furnishes some clue as to the meaning and purpose of Section Re. K.P. Varghese v. ITO, (1982) 1 SCR 629 at 647 (AIR 1981 SC 1922 AT P.1931). In case of ambiguity or doubt heading can be referred to as an aid in construing the provision. This heading indicates that the legislature has envisaged special provision for paying compensation on structural formula basis instead of paying the compensation by long drawn litigation after establishing fault liability.�

In the present case, the question does not relate to head note of the section but it relates to the title or nomenclature of the service rule in question notified by State itself which indicates that the tenure of service is part and parcel of service condition.

Mr. Umesh Chandra, learned Senior Counsel has rightly relied upon the Apex Court''s judgment reported in �(1990) 4 SCC 262, In Re Reference under Article 317(1) of the Constitution of India�, while submitting that the case of government servant stands on different pedestal than the cases of constitutional functionaries. Hon''ble Supreme Court in a reference under Art.317(1) held as under:

�9. The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a Member of the Commission is different. The latter holds a constitutional post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of Part XIV of the Constitution. In our view the decisions dealing with service cases relied upon on behalf of the respondent have no application to the present matter and the reference will have to be answered on the merits of the case with reference to the complaint and the respondent''s defence.�

Similar principle of law is being reflected from another case, relied upon by the petitioner''s counsel, (2003) 2 SCC 147, Ravinder Pal Singh Sindhu, Chairman, Punjab Public Service Commission, RE.

Learned Addl. Advocate General has vehemently relied upon the Apex Court''s judgment of Kailash Chand Mahajan (supra) stating that reduction of tenure of service by impugned amendment should not be treated as removal from service but is a cessation from service. The case of Kailash Chand Mahajan (supra) relates to reduction of age of superannuation of the Chairman, Himanchal State Electricity Board by amending the statutory provisions. The service condition of Chairman and the Member of the Himanchal Pradesh Electricity Board is governed by the statutory provisions. No constitutional rider has been imposed (like Article 243K) on the power of the State Legislature to amend the service rule for the purpose of reduction of tenure. Accordingly, their Lordships held that reduction of tenure of service amounts to cessation and not removal. The protection granted by the statutory provisions shall cease to exist after amendment of the Act. The State has got power to amend the statute, rules and regulations under the General Clauses Act but it is subject to constitutional provisions which is the Supreme Law of Land.

However, the facts and circumstances of the present case are entirely different than which were involved in the case of Kailash Chand Mahajan (supra). No doubt, the State has got power to amend the rules in question but that power is subject to limitation contained in Art. 243K of the Constitution. Existence of power in the State to amend a statutory provision is one thing and exercise of such power within the constitution frame is different thing. Thus, though the State has got power to amend service rule but that could have been done only within the fourcorner of Art.243K of the Constitution which seems to have not been done.

In the case of Gwalior Rayons Silk Mfg. (Wvg) Co. Ltd. (supra), Hon''ble Supreme Court while constructing a statutory provision held that the purpose of legislation seeks to obviate some mischief and to formulate a plan of Government. The language of the statute should be read in the light of other external manifestations of purpose. To quote from Gwalior Rayons Silk Mfg. (Wvg) Co. Ltd. (supra):

�8. This whole line of argument with respect, is hard to accept. As Felix Frankfurter, J. said: ''Legislation is a form of literary composition. But construction is not an abstract process equally valid for every composition, not even for every composition whose meaning must be judicially ascertained. The nature of the composition demands awareness of certain presuppositions���..And so, the significance of an enactment, its antecedents as well as its later history, its relation to other enactments, all may be relevant to the construction of words for on purpose and in one setting but not for another. Some words are confined to their history; some are starting points for history. Words are intellectual and moral currency. They come from the legislative mint with some intrinsic meaning. Sometimes it remains unchanged. Like currency, words sometimes appreciate or depreciate in value.� The learned Judge further stated, �Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evinced in the language of the statute, as read in the light of other external manifestations of purpose. That is what the Judge must seek and effectuate.� (See Courts, Judges and Politics by Walter F. Murphy: ''some Reflections on the Reading of Statutes'' by Falix Frankfurter).�

In the case of Union of India v. Association for Democratic Reforms and others (supra), Hon''ble Supreme Court while reiterating the principle and importance of just and fair election as opined in Mohinder Singh Gill''s case (supra) again said that the right of election is the very essence of the Constitution and should be based on free and fair election and power of superintendence, direction and control of Election Commission of India under Art. 324 of the Constitution is very wide to cover each and every aspect relating to the election to meet out the constitutional rule. To quote from Union of India v. Association for Democratic Reforms and others (supra):

�23. Democracy is Government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular Government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. The right of election is the very essence of the Constitution'' (Junius). It needs little argument to hold that the heart of the parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more:

Thereafter, the Court dealt with the scope of Article 324 and observed (in para 39) thus: (SCC p.431)

�Article 324, in our view, operates in areas left unoccupied by legislation and the words ''superintendence, direction and control'', as well as ''conduct of all elections'', are the broadest terms.�

In the case reported in AIR 1957 SC 699, State of Bombay v. R.M.D. Chamarbaugwala and another, Hon''ble Supreme Court has laid down the ground on which the validity of an Act can be judged by the Court. Relevant portion from the judgment of R.M.D. Chamarbaugwala is reproduced as under:

�14. The principal question canvassed before us relates to the validity or otherwise of the impugned Act. The Court of Appeal has rightly pointed out that when the validity of an Act is called in question, the first thing for the court to do is to examine whether the Act is a law with respect to a topic assigned to the particular Legislature which enacted it.

If it is, then the court is next to consider whether, in the case of an Act passed by the Legislature of a Province (now a State) its operation extends beyond the boundaries of the Province or the State; for under the provisions conferring legislative powers on it such Legislature can only make a law for its territories or any part thereof and its laws cannot in the absence of a territorial nexus, have any extraterritorial operation.

If the impugned law satisfies both these tests, then finally the court has to ascertain if there is anything in any other part of the Constitution which places any fetter on the legislative powers of such Legislature. The impugned law has to pass all these three tests.�

In a case, reported in AIR 1953 SC 274, Poppatial Shah, Partner of Messrs. Indo Malayan Trading Co. v. The State of Madras, represented by the Deputy Commercial Tax Officer, Sowcarpet, Madras, Hon''ble Supreme Court held that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself. The title and preamble also throw light on the intent and design of the Legislature and indicate the scope and purpose of the legislation itself. To reproduce from Poppatial Shah''s case (supra):

�It is a settled rule of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself. The title of the Madras Sales Tax Act describes it to be an Act, the object of which is to provide for the levy of a general tax on the sale of goods in the Province of Madras and the very same words are repeated in the preamble which follows. The title and preamble, whatever their value might be as aids to the construction of a statute, undoubtedly throw light on the intent and design of the Legislature and indicate the scope and purpose of the legislation itself.�

Under Ancient Rule of Interpretation commonly called Mimansa Rules of Interpretation in case Article 243K is construed, the outcome will be same i.e. legislature lacks power to do anything including reduction of tenure of State Election Commission which may directly or indirectly affected the performance of Election Commission for any reason whatsoever as an independent body. Scholar Jaimini states (6:3:27):

(i.e., when there is a conflict between the object and the material, the object is to prevail, because in the absence of the material the substitute is used, the material being subordinate to the object.)

Thus, the Jateshti maxim (the maxim for the substitution of the Putika plant for the soma plant) lays down that where a thing is enjoined for a certain purpose, in its absence another thing of the same genus may be substituted which serves that purpose.�

The Mimansa Rules of Interpretation referred hereinabove were used by scholars of ancient India while interpreting various old ancient Indian manuscript.

There is one more reason why the impugned amendment is bad. It is settled law that what cannot be done directly, it cannot be done indirectly [vide (2003) 2 SCC 593, Dayal Singh and others v. Union of India and others]. Once Art.243K of the Constitution provides that the State Election Commissioner may be removed only in the manner, as a Judge of the High Court is removed as provided in Art.217 of the Constitution of India, then the State Legislature lacks power to reduce the tenure by amending the rules in question. Removal corelates with the reduction of tenure. Whether it is cessation or removal in pursuance to the power conferred in Art. 217 of the Constitution, the outcome of both the process is the same, i.e. the Election Commissioner shall cease to hold office.

Keeping in view the aforesaid mandate of the Apex Court, though the State Legislature has got power to amend the rules in question keeping in view the provisions contained in General Clauses Act, but such amendment must be done within the fourcorner of Art.243K of the Constitution. Since the Legislature does not have got power to reduce the tenure of service in view of the embargo contained in Clause (2) read with Clause (4) of Art. 243K of the Constitution of India, impugned amendment seems to be unconstitutional.

However, the present writ petition cannot be allowed for the reason that during pendency of the writ petition, Mr. Rajendra Bhonwal was appointed as Chief Election Commissioner. Learned counsel for the petitioner has made a statement during the course of hearing that it is not necessary to issue notice to the new incumbent and the writ petition may be heard finally on merit without providing opportunity of hearing being given to the present incumbent. Accordingly, the writ petition was heard and judgment reserved.

It is settled proposition of law that the High Court ought not to hear and dispose of a writ petition under Art.226 of the Constitution of India without the person who could be vitally affected by its judgment being before it as respondent in the array of parties, vide AIR 1963 SC 786, Udit Narain v. Board of Revenue; AIR 1984 SC 468, Diwakar Shrivastava and others v. State of M.P. and dothers; 1987 Supp SCC 15, Ranga Reddy v. State of Andhra Pradesh.

It was Chief Justice Marshall of U.S. Supreme Court while adjudicating a controversy in famous case of Marbury v. Madison, 5 U.S. (1 Cr.) I 37, 176(1803) (in short, Marbury''s case), raised an issue as to whether an Act, repugnant to the Constitution, can become the law of land? It was the starting point where the status of legislative omnipotence was questioned. According to Marbury, an Act of Legislature, repugnant to the Constitution, is void. Chief Justice Marshall enquired whether an unconstitutional act is a valid law after declaring void a section of the Judiciary Act of 1789. Marshall reversed the earlier proposition of law that the Legislatures are omnipotent and act of Parliament or State Legislature cannot be subjected to judicial review. Since then Marbury''s law relating to judicial review had travelled a long way culminating into recent judgment of the Supreme Court of India, reported in (2007) 2 SCC 1, I.R. Coelho (Dead) by Lrs v. State of T.N. where the iron curtain surrounding lXth Schedule of the Constitution has been melted down subjecting to judicial review.

Benjamin N. Cardozo in his famous treatise, �The Nature of the Judicial Process� had rightly pointed out that every institution suffer from some infirmity which also includes the legislative bodies. That is why in democratic country, checks and balance have been maintained to serve the society empowering the higher judiciary with the power of judicial review. There cannot be presumption that the decision taken by the Legislatures shall always be correct. To quote from �The Nature of the Judicial Process� (supra):

�The flaws are there as in every human institution. Because they are not only there but visible, we have faith that they will be corrected. There is no assurance that the rule of the majority will be the expression of perfect reason when embodied in constitution or in statute.�

Dr. Babasaheb Ambedkar, the Chief Architect of the Indian Constitution as far back as in the year 1939 had expressed his doubt that a popular government shall always be correct in its decision making process. To quote from Dr. Babasaheb Ambedkar Writings and Speeches Vol.1, printed by Education Department, Government of Maharashtra, 1979, page 339:

�The people are always asking as to why there should be this mismanagement and maladministration in the States. The usual answer is that it is the consequence of Personal Rule Everywhere the demand made is that Personal rule should be replaced by Popular Government. I have grave doubts about the efficacy of this demand. I do not think that in a large majority of cases the substitution of Popular Government will be any cure for the ills of the State subjects. For, I am sure that the evils arise as much from the misrule of the Ruler as they arise from want of resources. Few have any idea as to how scanty are the resources of the India States.�

The living legend of this country, Hon''ble Justice Krishna Iyer while considering the legislative omnipotence to frame law in Carew and Company Limited (supra) held as under:

�30�����.In time, however, somebody will have to tackle the basic question how long can we sustain the fiction that when the legislature prescribes for a problem, it provides a complete set of answers; and that the court, when confronted with a difficult statute, merely uses the techniques of construction to wring an innate meaning out of the words?

One cannot, these days approach the problem of statutory interpretation in isolation from the legislative process. And I do not think the proposal to allow the Court to consult parliamentary documents meets this objection. As long as the fiction persists that the courts merely ''interpret'' statutes. Parliament will continue to put out legislation of ever increasing detail and complexity in the belief that it must provide a complete set of answers. This is a selfdefeating ambition. Where does one look for the intention of the legislature in today''s monster Acts, with their fiotillas of statutory instruments and schedules, the plethora of boards, tribunals and committees, with delegated powers, which they set up, the myriad of subjects they deal with, their confusing crossreferences to other statutes, and their often opaque and tortured language that defies translation into intelligible ideas?

x x x

�What exactly are the respective roles of Parliament and the courts as regards legislation? Since it is a fiction that the courts merely seek out the legislative intent, there must be a margin in which they mould or ''creatively'' interpret legislation. The courts are ''finishers, refiners and polishers of legislation which comes to them in a state equiring varying degrees of further processing'', said Donaldson J. in Corocraft Ltd. v. Pan American Airways Inc., [(1968) 3 WLR 714 at p.732) and indeed it is no secret that courts constantly give their own shape to enactments.�

Legislatures are not omnipotent. The law promulgated by legislatures are subject to judicial review as discussed hereinabove and affirmed by the Supreme Court in a recent judgment of I.R. Coelho (supra). In I.R. Coelho (supra), the Supreme Court while reaffirming the law laid down in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 and Minerva Mills Limited v. Union of India, (1980) 3 SCC 625 held that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. Hon''ble Supreme Court further held that while interpreting statutory provisions, the Court will look into the actual imperilment passed by law; rather the literal validity of the Act. Meaning thereby in case even if a legislation is promulgated within the competence and does not suffer from colourable exercise of powers, then whether in case its effect, give a set back to the democratic system, the Court under the power of judicial review may, declare it ultra vires? The other question is whether only because of change of Government a political party in power may repeal a statute within a short span of time without any aim and object and disclosing the material which has persuaded the legislature to repeal the earlier Act or its part? Whether, as in the present case, the first amendment was notified on 8.12.2006 which has been repealed because of the change of Government in power by subsequent impugned amending Act dated 1.6.2007, (in short span of time) without disclosing the aims, object, material or grounds and the necessity to amend the earlier provision can be a ground to declare the Act ultra vies being arbitrary based on unfounded grounds being violative of Art. 14?

There is one more reason why the amending power of legislature call for close scrutiny. We can take judicial notice of the fact that every time after change of Government, certain Act are repealed, amended and decision taken by the earlier Government or legislatures of preceding term are set at naught by amending or repealing even the public utility Act or legislation. It has been settled by the Apex Court thet the decision taken by the earlier Government vide 2006 Vol 4 SCC 683, State of Karnataka v. All India Manufacturers Organization, 2004 vol. 4 SCC 714, State of U.P. and another v. Johri Mal and 2002 Vol. 2 SCC 507, State of Haryana v. State of Panjab.

It is also settled law that the power if Governor of the State under Art. 213 of the Constitution to promulgate Ordinance during recess of State Legislature under Art. 213 is not unfettred one. In appropriate case, it can be subjected to judicial review on reasonable grounds vide AIR 1998 Kar. 91, B.A. Hasanabha and others v. State of Karnataka and others; (2001) 4 SCC 534, Gurudevdatta VKSSS Maryadit and others v. State of Maharashtra and others, (1987) 1 SCC 378, Dr. D.C. Wadhwa v. State of Bihar and others and others cases.

On same analogy, though mala fide cannot be attributed to legislatures but in case a repealing or amending Act is based on unfounded grounds or unjust and improper, then whether its justness and reasonableness may be looked into by the Courts under the writ jurisdiction? Though every political party has got right to run the country or its Government keeping in view its political philosophy but whether the decision taken by the earlier legislature can be repealed for extraneous reasons or to accommodate their own men or persons in public office?

By a catena of judgments, Hon''ble Supreme Court held that the Constitution is a living organism and while interpreting the law and constitutional provisions, ground realities may be taken into consideration. The principle is equally applicable to the legislative enactments. The Constitution is the supreme law of the land. While interpreting the constitutional provisions as far as possible, no room should be left which may leave a gallery for executives to abuse its authority for extraneous reasons. Today an amendment has been made to reduce the tenure of the office of the State Election Commissioner from seven years to five years and tomorrow, the term may be reduced again from five years to lesser period which cannot be ruled out in the present scenario. The questions raised (supra) may be considered in appropriate case.

The scope of interference in such cases where controversy relates to government servants and where service conditions are governed by the statutory provisions without any rider imposed by the Constitution is narrow but in the present case, the power of State Legislature has been restricted by the provision contained in Article 243K. Keeping in view the ground realities and importance of the office, the tenure of the office of the State Election Commissioner should not be left in the hands of the executive pleasure. The increase of the tenure of office is a beneficial incident though it may not be proper but once the tenure of office is extended by the legislatures themselves by amending the Act, then reduction of the tenure on unfounded grounds or for any reason, whatsoever seems to be not permissible keeping in view the letter and spirit of Clause (2) read with Clause (4) of Art. 243K of the Constitution as discussed hereinabove.

In case the State Legislature is permitted to treat the State Election Commissioner like ordinary government servant and provisions contained in Art. 243K of the Constitution is interpreted in the manner the statutes covering the service conditions of government servants, then it shall defeat the very purpose of the constitutional provisions incorporated by the amendment in the year 1993 while introducing the panchayat system in the country represented by elected representatives of the people and creating the State Election Commission, with same power and duties possessed by the Election Commission of India conferred by Art.124 of the Constitution of India. The Election Commission shall not be able to discharge its constitutional obligations in case the tenure of service is not secured of protected. He or she shall not be able to discharge duty keeping in view the constitutional spirit to hold free and fair election in the State.

In view of the above, the impugned rules seem to be violative of the provisions contained in Article 243(2) read with Clause (4) of the Constitution. The impugned amendment is ultra vires to the Constitution and the action of the State legislature to reduce the tenure of State Election Commissioner is not justified being disadvantageous to the State Election Commission. The tenure of service is also a part of the service conditions as well as service benefit enjoyed by a person holding the office of State Election Commissioner.

However, as discussed hereinabove, no relief can be granted to the petitioner because of the nonjoinder of the necessary party. The petitioner''s counsel on his own had proceeded to argue the case without providing opportunity of hearing to the newly appointed State Election Commissioner while assailing the impugned notification.

Subject to observations made hereinabove, the writ petition is dismissed. No order as to costs.

(Petition dismissed)