Raghupati v. State Of Bihar — 1990 DIGILAW 43 (PAT)

Judgment Satya Brata Sanyal, J. 1. The petitioner, in the capacity as the Incharge of Election Compaing Committee, Bihar State Janta Dal, is desirous for issuance of a writ for quashing an order of transfer dated 23rd December, 1989 (Annexure-1), by which eight officers at the Secretariat level have been transferred from one Department to the other and for any other order or direction that may be deemed fit and proper in the circumstances of the case. It is said that the quashing of the said order (Annexure-1) would be in the interest of purity of election and for avoiding unfair means in the conduct of election. 2. It has been averred in the petition that the Congress Government in Bihar have indulged in booth-capturing and rigging the election and they have indulged in corrupt practices succssfully by having pliable officers on the important posts for flouting the verdict of the people. With this objective, there have been transfers on crucial posts on the eve of election, so that mass transfer of officers and Government employees be made effective through such officers. There have been some aspersions made against the Chief Minister which read as follows: That Dr. Jagannath Mishra, an expert in manipulating politics, has been inducted as the Chief Minister, Bihar for amassing illegal gratifications on the eve of impending Assembly Elections, likely to be held in February-March, 1990 in this State. The petitioner apprehends that he is planning mass scale transfers of the Engineers and other officers of the State with a view to a mass money for illegal use in the election and positing of officers and other employees of the State for rigging and booth-capturing in the coming Assembly Elections. A supplementary affidavit has been filed by the petitioner annexing certain Press reports with repect to the Election Commissions objection to the mass transfer of officers. 3 A counter-affidavit has been filed on behalf of the respondent-State stating that a declartion for general elections under Sec. 15 of the Representation of People Act, 1951, has been made only on 27th of January, 1990. A copy of the Notification by which the Governor of Bihar has called upon all the Assembly constituencies in the State to elect members in accordance with the provision of the Representation of Peaple Act, 1951, has been annexed as Annexure "X". A copy of the Notification by which the Governor of Bihar has called upon all the Assembly constituencies in the State to elect members in accordance with the provision of the Representation of Peaple Act, 1951, has been annexed as Annexure "X". It has also been stated that the petitioner has not been made Incharge of Election Compaign Committee of the Bihar Legislative Assembly, nor is he a member of any registered society. The petitioner is stated to be mainly interested in two officers, Sri I.C. Kumar and Sri Abhimanyu Singh. The allegations of corrupt practies and booth capturing have all been denied. The transfers of officers are asserted to have been made on administrative ground for the purpose of streamlining the progressive steps of the present Government, the petitioners allegation against Dr. Jagannath Mishra (Respondent No. 2) has been termed as abuses, defematory, palpably false and concerned. It is said they are baseless and incorrect. It has been further stated that the officers who have been transferred at the Secretariat level are wholly unconnected with the conduct of elections and they are all posted in the Secretariat from before and they have no work to do as regards the Assembly elections. Transfers have been effected by the Cabinent and by the order of the Governor for adminstrative excellance. The allegation of mala fide and all other allegations in this connection have been denied. 4. It may be stated at the outset that the officers whose transfers have been challenged in this writ petition are not parties nor any of the officers has intervened in the instant writ petition. On behalf of the Election Commission, Mrs. Renkua Sharma submitted that in spite of service of copy of this writ petition, the Commission has not given any instruction either in support or against the contentions raised in this writ petition. 5. Mr. Indu Shekhar Pd. Sinha, Learned Counsel appearing for the petitioner, submitted that the transfers of the officers are in violation of the directions of the Election Commission dated 26th July, 1989 inspite of its acceptance by the State Government on the 2nd of September, 1989, and the re-imposition of ban on 21st December, 1989. According to the learned Counsel, the instant transfer order dated 23.12.1989 is in the teeth pf those directions of the Election Commission and should, accordingly, be quashed. According to the learned Counsel, the instant transfer order dated 23.12.1989 is in the teeth pf those directions of the Election Commission and should, accordingly, be quashed. Learned Counsel further submits that in view of the office the petitioner holds, he has locus standi to challenge the order of transfer, since, the impugned transfers are likely to vitiate the purity of elections. Advocate General, on the other hand, submitted that the petitioner has no locus standi to advance the cause of a few individuals in the garb of a public interest litigation. He also contended that the concerned persons, who are eight in number, have not been made parties to this writ petition, who are likely to be affected by issuance of any kind of writ by this Court. The persons noticed in Annexure-1, according to the learned Advocate General, do not come within the sweep of the directions, either of the Election Commissioner of the Electoral Officer. They are wholly unconnected with the elections. 6. Mr. Indu Shekhar Pd. Sinha relying upon the case of S.P. Gupta V/s. M. Tarkunde , submitted that the rule of locus standi stands much liberalised. Breach of public duty cannot go unredressed and/or unchecked as that would promote disrespect for the rule of law. The impugned transters are in breach of the public duty and the directions of the Election Commission and therefore, the petitioner can move this Court and complain about the breach, since, it relates to the purity of free and fair elections. As to the objection of the respondent-State, or the petitioners failure to implead persons noticed in Annexure-1, learned Counsel drew our attention to the case of the General Manager, South Central Railway V/s. A.V.R. Sidhanti and Ors. -- , as also the decision of B. Prabhakar Rao and Ors. V/s. Andhra Pradesh and contended that where the validity of the Government policy is impeached as being violative of Article 324(1) of the Constitution, in such a proceeding the only necessary party required to be impleaded is the person against whom the relief is sought and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed against the Government, not against the individuals, and therefore, they are not necessary parties and their non-joinder could not be fatal to the writ petition. 7. In the present case, the relief is claimed against the Government, not against the individuals, and therefore, they are not necessary parties and their non-joinder could not be fatal to the writ petition. 7. It may be stated at the outset that in the case of the General Manager (supra), the seniority rule regulating the seniority of the Government servants was in challenge, as being violative of Articles 14 and 16 of the Constitution, and in the case of B. Prabhkar Rao (supra), the ordinance issued by the Government was challenged, claiming relief against the Government. 8. On merit, Mr. Indu Shekhar Pd. Sinha, senior Counsel appearing for the petitioner, submitted that Article 324(1) of the Constitution is the reservior of power for the Election Commission to issue directions banning transfer of officers, as has been done in this case, by referring to the letter of the Election Commission dated 26th July, 1989. He contended that for issuance of the said direction, a notification under Sec. 15 of the Representation of the People Act, 1951, is not essential. It can be issued where the election is imminent and even at a stage prior to the declaration of elections under Section 15 of the Representation of the People Act, 1951. Preparation for election, according to the learned Counsel, is a matter connected with the conduct of election. As such, the State Government was bound to abide by the directions of the Election Commission contained in the letter dated the 26th July, 1989, and its acceptance by the Chief Secretary of the State Government on 2nd September, 1989. It is said that the impugned transfers are in violation of those directions of the Election Commission and as such should be quashed. In course of his submission, learned Counsel widened his argument challenging all transfers made by the State Government during the period between 26th July, 1989 till date to be set at naught and/or made inoperative by issuance of a direction in this writ petition. On being questioned about there being no pleading in support thereof, learned Counsel submitted that it is covered by the relief (b) in the prayer portion of the writ petition, which says: any other writ, order or direction which your Lordships may deem tit and proper in the circumstances of the case. On being questioned about there being no pleading in support thereof, learned Counsel submitted that it is covered by the relief (b) in the prayer portion of the writ petition, which says: any other writ, order or direction which your Lordships may deem tit and proper in the circumstances of the case. On the contrary, the learned Advocate General submitted that this writ petition is not maintainable as a public interest litigation which would be manifest from the pleading and the prayer in the writ petition. Further, persons, whose transfers are assailed not being parties to the writ petition, the writ petition, is not maintainable. Learned Advocate General further contended that the broader issue which has been raised by the learned Counsel for the petitioner in course of argument cannot be gone into in this writ petition because the directions contained in the communication of the Election Commission did not cover the persons noticed in Annexure-1 who are wholly unconnected with the conduct of the elections. 9. Having heard learned Counsel for the parties, we, are in agreement with the learned Counsel for the petitioner that the principle of locus standi stands much widened and any person has a right to move the Court where there is a breach of any public duty and a legal wrong and a legal injury it caused to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed for contravention of any constitutional or legal provision or without authority of law, and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226, and in case of breach of any fundamental right even under Article 32 of the Constitution of India, seeking judicial redressal for such a legal wrong or injury. But at the same time, the Court will refrain from activitiaing itself in entertaining cases of individual wrong or injury at the instance of a third party. The instant writ petition relates to the transfer of eight officers of Secretary rank, who are neither financially weak nor educationally backward to assail their transfer and posting in the Secretariat. But at the same time, the Court will refrain from activitiaing itself in entertaining cases of individual wrong or injury at the instance of a third party. The instant writ petition relates to the transfer of eight officers of Secretary rank, who are neither financially weak nor educationally backward to assail their transfer and posting in the Secretariat. To us it appears that the petitioner seeks to advance the cause of those individual officers for the alleged wrong done to them individually. In the counter-affidavit, the state asserts that the petitioner is the mouth-piece of two of such officers. In day to day administration, transfer and posting keeps on visiting a Government servant. Therefore, a mere transfer and positing can not be held to be in breach of any publicy duty, not in breach of any fundamental right. It casts no burden nor it takes away any right of a Government servant. According to the Government policy, transfer and posting usually takes effect in the month of December. For administrative exigencies, it may be at any time of the year. It is for the Government to decide as to who should be transferred when and where. We are left with an impression that in this writ petition, the petitioner intends to advance the cause of few individuals and not for public benefit or for the benefit of determinate weak class. 10. As regards the question of mala fide, the allegations are more in the nature of abuses. It is said that the petitioner apprehends that the Chief Minister is planning mass scale transfer in order to a mass money for the election. None of the officers transferred has come forward to state that the Chief Minister has extorted or extracted any money from them while passing the impugned order of transfer and posting. The transfer and posting is made by the Cabinet, and not by the Chief Minister alone. The plea of mala fide is not founded upon proper pleading and. therefore, cannot be gone into. The affidavit in support of it is also defective. This writ petition, therefore, at the instance of the petitioner cannot be entertained as public interest litigation. 11. We also do not agree that those eight officers who have been transferred are not necessary parties to the writ petition. On the contrary, they are so Some may assail it, and some may hail it. This writ petition, therefore, at the instance of the petitioner cannot be entertained as public interest litigation. 11. We also do not agree that those eight officers who have been transferred are not necessary parties to the writ petition. On the contrary, they are so Some may assail it, and some may hail it. One may feel affected and others may feel unaffected. Reshuffling of eight officers at the Secretariat level, which is an usual exercise of the Government, does not involve any important question of Government policy or breach of any law of the Government. The reliance on the cases of the General Manager, South Central Railway, and B. Prabhakar Rao, (supra) is wholly misplaced. 12. The action which has really been challenged in course of argument is the transfer of officers connected with "the conduct of election" after the issuance of the Communication of the Election Commission on the 26th of July, 1989. But it is nowhere pleaded in this writ petition that these eight officers where connected with the conduct of Assembly elections. On the contrary in the counter-affidavit, it has been asserted that they were not connected with the conduct of Assembly elections, since, they are posted in the Secretariat of the State Government. In Paragraph 5 of the writ petition, the apprehension expressed is of amussing money through these reshuffling on the eve of Assembly elections for the purpose of rigging and booth-capturing. Apprehension is not a fact but a mental condition and is in the nature of speculation and inference, which cannot form the basis for grant of any writ in exercise of our power confered under Article 226 of the Constitution of India. That apart, the apprehension does not bring these eight officers nearer to the conduct of election, but far from it. There is neither pleading nor proper relief claimed for the larger question urged before us assailing all transfers made after 26th July, 1998, to be in breach of the directions issued by the Election Commission in exercise of the power conferred under Article 324(1) of the Constitution of India and. therefore, to be quashed. On the pleading of the writ petitioner, we find that these eight officers referred to in Annexure 1 are unconnected with the conduct of the elections and, therefore, they are not covered by the direction of the Election Commission. 13. therefore, to be quashed. On the pleading of the writ petitioner, we find that these eight officers referred to in Annexure 1 are unconnected with the conduct of the elections and, therefore, they are not covered by the direction of the Election Commission. 13. We need not decide in the instant case the validity and legality of the directions issued by the Election Commission and/or by the Electoral officer and/or its breach by the State Government. We express no opinion in the instant writ petition as to those questions. 14. We have already referred two writ petitions, being C.W.J.C. Nos. 106 of 1990 and 436 of 1990 to a Special Bench for determination of those Questions and it is open to the petitioner to intervene, if so advised. We refrain from deciding those questions in this writ petition because of the pleading and the prayer of the petitioner in this case. 15. This writ petition is, accordingly, dismissed, but there will be no order as to costs.