The Delhi High Court today dismissed a petition by a former BJP MLA challenging the appointment of Chief Secretary Vijay Kumar Dev as Election Commissioner of Municipal Corporations of Delhi from April 21.

The High Court said there was no merit in the petition as the date when Dev shall take over as Election Commissioner, he would cease to be a government servant as his request for voluntary retirement with effect from April 20 has been accepted by the Central government.

A Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla dismissed the petition filed by former BJP MLA Nand Kishore Garg which alleged that the appointment was illegal and improper, saying there is no factual basis laid down in the petition that upon assuming the office of Election Commissioner, Dev will not function independently .

The Bench said merely because the notification appointing Dev as the Election Commissioner was issued while he was still in service as Delhi Chief Secretary, is neither here nor there since the appointment would be with effect from April 21, 2022, by then he would have retired from the Government of India.

The High Court had earlier issued notice to the Delhi government and the three MCDs East, North, and South, on the petition seeking direction to the state to immediately withdraw its November 25, 2021 notification.

By its notification, the Delhi government has allegedly improperly earmarked the appointment of serving chief secretary of Government of NCT of Delhi as Election Commissioner of MCDs with effect from April 21, 2022, Garg had claimed in his plea.

The petitioner, represented through Advocate Shashank Deo Sudhi, claimed that the appointment was made in utter violation of the settled principles of law which mandates that important government post like election commissioner must be offered to a neutral and apolitical person and must not be the party to the several political as well as administrative decision of a particular government as it can be capable of affecting the free and fair election process in the MCDs.

The Delhi government, represented by senior advocate Rahul Mehra, has defended the appointment of Dev as the Election Commissioner of MCDs, saying that the appointment has been made in accordance with law and to say that it was done as a quid pro quo was scurrilous.

In an affidavit filed in response to the petition, the Delhi government has informed that the officer is scheduled to assume office as the Election Commissioner on April 21 when he would no longer be serving as a government servant as his request seeking voluntary resignation with effect from April 20 has been accepted.

The government said that a fresh and independent appointment was made with the approval of the Delhi Lieutenant Governor and that the officer's reputation, experience, and track record are beyond doubt and unquestionable and the decision was taken after due, detailed, and in-depth consideration at the highest level and after taking note of all persons falling in the zone of consideration.

The motive, objective, and purpose of the plea appeared to be to stall the elections to the three Municipal Corporations and tarnish the reputation of the officer and should thus be dismissed, it has contended, while clarifying that the appointment has no connection or correlation with the upcoming elections at the MCDs.

The affidavit further said that the Election Commissioner of National Capital Territory of Delhi (Conditions of service and tenure of office) Rules, 2019 expressly provide that the person to be appointed as an election commissioner must be a serving or retired officer belonging to the Indian Administrative Service has held the rank of Secretary to the Govt. Of India (UT cadre) or Chief Secretary /Principal Secretary in the Delhi government and therefore the appointment in the present case is in accordance with the statutory regime and does not suffer from any infirmity.

The petition said, In this respect, it is submitted that the serving chief secretary of Government of NCT of Delhi is still having his tenure of present service till March 8, 2023. However, respondent no.1 (Delhi government) has acted with vested interest and ulterior motive as the incumbent chief secretary of Delhi has been actively associated with it at every level of administrative decisions and it has obliged the serving chief secretary to pay back to it in the forthcoming election of MCD as the government had decided to extend the service tenure of incumbent chief secretary for more than five years

It alleged that this blatant decision of the government has the serious bearing and repercussions to the very foundation of democracy and the notification is not only improper but also illegal and against the settled principles of law and the same may be declared as unconstitutional.

With PTI inputs