The Patna High Court on Thursday declared appointment of JK Dutta as State Election Commissioner (SEC) illegal on technical ground. The court also restrained Dutta from performing the function of the SEC. The division bench comprising Acting Chief Justice Chandramauli Kumar Prasad and Justice Dr Ravi Ranjan passed the order on a Public Interest Litigation (PIL) petition filed by Sunil Kumar Tiwari.
“It has been found that the appointment of J K Dutta at the office of state election commission is not in accordance with law. He is a usurper of that office. Accordingly, the court restrains JK Dutta from discharging any of the functions, rights, duties of the office of State Election Commission,” the court observed, while passing the order.
However, the court clarified that “Dutta individually does not suffer from any disqualification and his appointment suffers from the vice of procedural ultra-virus”. The court directed that “no refund of salary or emoluments be made and further all the act done by him shall not be held illegal”.
Th petitioner, who is the secretary of ‘Servers of Societies’, stated in the petition that under Article 243 K of the Constitution of India as well as under section 123 of the Bihar Panchayat Raj Act, the SEC has to be appointed by the Governor, while annexing a notification of June 5, 2006 showing that JK Dutta is appointed by the Governor.
However, the petitioner claimed, when he filed a petition under Right to Information(RTI) Act, the authorities informed him that the governor had never appointed Dutta as SEC; rather the appointment had been made by the Bihar Chief Minister.
Pleading for a direction for removal of JK Dutta from the office of state election commission, the petitioner claimed that this appointment was made neither by the Governor of Bihar nor any advice was given by the council of ministers to the Governor. The appointment had been made by the orders of the Chief Minister in the name of Governor, which is ‘wrong’.
Tiwari, in his petition, impleaded nine- respondents, including the Chief Minister, Chief Secretary, Principal Secretary of Panchayat Raj Department, State Election Commission and state election commissioner as the respondent party of the case.
In September last year, during hearing of the case, the court had asked the respondent authorities to respond on the PIL. Thereafter, all the parties represented through their counsel, After hearing all the parties, the court had reserved the order on an earlier date of hearing, which was pronounced on Thursday.