THE ELECTION COMMISSIONER OF INDIA v. STATE OF C. G.
2003-11-14
FAKHRUDDIN, L.C.BHADOO
body2003
DigiLaw.ai
ORDER As per Hon'ble Shri Fakhruddin, J.- 1. Both these petitions involve similar questions, as such they have been heard together and being disposed of by common order. 2. The superintendence, directions and control of elections, preparation of Electoral rolls and conduct of all Elections for Parliament and State Legislature of every State vests under Article 324(1) of Constitution of India in Election Commission of India. It is provided that under Article 324(6) of the Constitution of India that the President or the Governor shall when requested by the Election Commission make available to it such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Article 324(1) of the Constitution. 3. It is submitted by the petitioner that by notification issued by the Commission, the State of Chhattisgarh made available the staff including District Collectors/District Magistrate of the District and they have been notified as District Election Officer/District Returning Officer. It is contended that these officers/ in the context of election related work are deemed to be on deputation to the Election Commission and subject to its disciplinary control. This has been made explicit according to petition under Section 13CC of the Representation of the People Act 1950 and Section 28A of the Representation of the People Act 1951. 4. It is submitted that the question of disciplinary jurisdiction of the Election Commission of India over officers under employment of Union of India and Governments of the States, Union Territories was the subject matter of Writ Petition (Civil) No. 606 of 1993 filed by the Election Commission of India before Hon'ble the Supreme Court under Article 32 of the Constitution of India. During pendency of the writ petition with a view to resolving certain differences that had arisen between the Election Commission of India and Union of India discussions were held between the said parties as well as nine other State Governments which were parties to the writ petition.
During pendency of the writ petition with a view to resolving certain differences that had arisen between the Election Commission of India and Union of India discussions were held between the said parties as well as nine other State Governments which were parties to the writ petition. Consequent thereto, certain agreed terms of settlement were arrived at between the Election Commission of India and the Union of India as under :- "The disciplinary functions of the Election Commission over officers, staff and police deputed to perform election duties shall extend to- (a) Suspending any officer/official/police personnel for insubordination or dereliction of duty; (b) Substituting any officer/official/police personnel by another such person, and returning the substituted individual to the cadre to which he belongs, with appropriate report on his conduct' (c) Making recommendation to the competent authority, for taking disciplinary action, for any act of insubordination or dereliction of duty, while on election duty. Such recommendation shall be promptly acted upon by the disciplinary authority, and action taken will be communicated to the Election Commission; within a period of 6 months from the date of the Election Commission's recommendation. (d) The Government of India will advise the State Governments that they too should follow the above principles and decisions, since a large number of election officials are under their administrative control. " 5. It is submitted that the above terms of settlement were taken note of by Hon 'ble the Supreme Court and W.P. No. 606/1993 was disposed of in terms of settlement vide order dated 21-9-2000. A copy of which has been field as Annexure P-1. Annexure P-1 is relevant and quoted below : ORDER I.A. No.5 of2000 in W.P. (C) No. 606 of 1993 As between the Election Commission of India and the Union of India (the petitioner and the first respondent to the writ petition, it is agreed that the writ petition be disposed of in terms of the Terms of Settlement recorded in paragraph (3) of the interim application. Learned counsel for the election Commission and the Union of India states that the States of Tripura, Maharashtra, Tamil Nadu, Andhra Pradesh and Mizoram have accepted these terms in toto. Insofar as other States are concerned, there is some reservation either in respect of one or the other term or altogether. The writ petition is disposed of in terms of aforesaid Terms of Settlements.
Insofar as other States are concerned, there is some reservation either in respect of one or the other term or altogether. The writ petition is disposed of in terms of aforesaid Terms of Settlements. As against States other than respondents 4, 6 and 7, the writ petition is allowed to be withdrawn and the issue is left open to be agitated in the appropriated proceedings, if raised. S.L.P. (C) No. 12481 of 1993. Learned counsel for the Election Commission of India (petitioner states that the special leave petition has become infructuous. It is disposed of as such. S.L.P. (C) No. 12721 of 1993 Learned counsel states that the issue involved in the original writ petition has been settled. On the application of learned counsel for the petitioner, the special petition is dismissed as withdrawn. T.P. (C) No. 772 of 1993 : The transfer petition relating to the afore-mentioned writ petition, therefore, does not survive and is dismissed as withdrawn. T.P. (C) No. 774-75 of1993: Learned counsel for the Election Commission of India (petitioner) states that these transfer petitions have become infructuous. They are disposed of as such. T.(C) No. 39 of 1998. The petitioner in-person is not present despite notice. In any event, the issue is now settled by the Terms of Settlement between the Election Commission of India and the Union of India in Writ petition (c) No.606 of 1993. The transferred case is, therefore dismissed." 6. It is further submitted that consequent to Annexure P-1, the Ministry of Personnel, Public Grievances and Pension issued Office Memoranda dated 7-11-2000 (Annexure P-2) and on 8-11-2000 Union of India addressed to all States Governments and Union Territories conveying to them the terms of settlement and requested that the State Governments may follow the terms of settlement in the case of officials deputed for Election duties by the State Government. Copy of which has been filed as Annexure P-3. 7. It is contended that the Election Commission had issued directives regarding banning the transfer of officers connected with the General Election/Bye Election and some of them are filed as Annexure P 4. It is contended that the petitioner has also issued Code of Conduct for universal application in the States where the Assembly elections are to take place in the Month of November and December, 2003. A Compendium of Directions /instructions is filed as Annexure P-5. 8.
It is contended that the petitioner has also issued Code of Conduct for universal application in the States where the Assembly elections are to take place in the Month of November and December, 2003. A Compendium of Directions /instructions is filed as Annexure P-5. 8. It is submitted that the directions/instructions came to the knowledge of respondent No.2 on or about 10th October 2003. It is stated that the petitioner enjoys residuary powers for which no specific law has been made or any statutory rules issued and uses such jurisdiction with regard to such residuary powers as and when deemed fit in the larger interest of free and fair elections and therefore the provision is made that "in the special circumstances, transfers could be effected after permission of the Election Commission. " 9. It is said that these powers are for a very limited period i.e. during the course of election proceedings. It is contended that respondent No. 3 Central Administrative Tribunal has been constituted. The jurisdiction, powers and authority of the Central Administrative Tribunal is given in Section - 14 of the 1985 Act. It is submitted that Section 3(a) defines service matters. The contention is that action of petitioner is that of merely shifting and does not fall within the mischief of the definition of service matters. It is submitted that the petitioner passed the order dated October 28, 2003 and- issued directions to the State against Collectors of Jashpur and Bastar for posting to Mantralaya. The State therefore passed order on 29th October 2003 posting them to Mantralaya. It is stated that the Commission passed the order on receipt of the complaints. The Commission sought explanations of the District Election Officer and District Collectors of Jashpur and Bastar regarding violation of the Code of Conduct by them and after considering the explanations offered by them, the Election Commission directed that these officers be relieved of their duties as District Election Officers and District Collectors with immediate effect and given such postings that do not entail election related responsibilities. It is also submitted that a panel of names of IAS officers was called for by return fax for the consideration of the Commission for appointment as District Collectors and District Election Officer of Jashpur and Bastar districts. 10.
It is also submitted that a panel of names of IAS officers was called for by return fax for the consideration of the Commission for appointment as District Collectors and District Election Officer of Jashpur and Bastar districts. 10. Counsel for the petitioner submits that the respondent No.2 in each case holding the post of District Election Officer by virtue of Collector/ District Magistrate presented the petitions before the Central Administrative Tribunal aggrieved by the order passed by the State. The reliefs claimed in those petitions are identical and are quoted below : "(i) to quash the impugned order dated (Annexure A-9) passed by the respondent No.1. (ii) to call the relevant records. (iii) This Hon'ble Tribunal may kindly be further pleased to pass any such other orders as this Hon'ble Tribunal may deem fit under the circumstances of the case." 11. The interim relief claimed in para 9 of the petition before the Central Administrative Tribunal is quoted below : "Pending final decision, the operation and effect of the impugned order dated Annexure A-9, passed by the respondent No.1, may please be stayed and the petitioner be allowed to continue at the present place of posting." 12. The matter came up for hearing before the Central Administrative Tribunal, which after hearing the counsel appearing for respective Collectors passed the orders on 31-10-2003. This order dated 31-10-2003 passed in O.A. No. 755/2003 in case of Collector Jagdalpur by the Tribunal reads as under :- "31.10.2003 Shri P.R. Bhave, learned Senior Advocate with Shri S.D. Gupta, learned counsel for the applicant. Heard the learned counsel for the applicant. The applicant who is a Collector and District Magistrate at Jagdalpur (Chhattisgarh) has filed this Original Application and has sought a direction to quash the order dated 29-10-2003 (Annexure A-7) by which he has been transferred to Secretariat Chhattisgarh State, Raipur. He has further sought a direction that pending final decision of this OA, the operation and effect of the impugned order dated 29-102003 be stayed. It has been alleged by the applicant that the impugned order passed by the respondent is arbitrary, punitive in nature and not in compliance of the principles of audialtarum partam.
He has further sought a direction that pending final decision of this OA, the operation and effect of the impugned order dated 29-102003 be stayed. It has been alleged by the applicant that the impugned order passed by the respondent is arbitrary, punitive in nature and not in compliance of the principles of audialtarum partam. According to the applicant he has been transferred on the ground that he has violated the directions of the Election Commission and allowed the distribution of five school bags even after the order of the Election Commission to stop the same. The applicant has stated that there is no lapse on the part of him and the directions issued by the Election Commission were promptly complied by him. He further submitted that the opportunity to furnish explanation given by the Election Commission was an empty formality, since the Election Commission has not considered the applicant's explanation before passing the impugned order. We are well aware of the legal position laid down by the Hon'ble Supreme Court that the Court/Tribunal should not interfere in the matter of transfers unless they are violative of statutory rules or have been issued with malafide intention or are punitive in nature. In this case the applicant has alleged that the transfer made by the respondents is arbitrary and punitive in nature and is in violation of principles of natural justice and Article 14 of the Constitution of India. Issue notice to the respondents to show cause as to why this case be not admitted. Shri K.N. Pethia, Additional Standing Counsel for UOI present in the Court takes notice on behalf of respondent No.3. The learned counsel for the applicant is directed to serve notices to respondents 1 & 2 by speed post. Let reply be filed within a period of four weeks and rejoinder, if any, within a period of two weeks thereafter. As regards interim relief, a short reply be fired by the respondents within a period of 10 days. In the meantime status quo as existed today shall be maintained. List it for, further orders on 13-11-2003 at INDORE C.C. be granted. " More or less similar is the order passed in O.A. No. 754/2003 in case of Collector Jashpur.
As regards interim relief, a short reply be fired by the respondents within a period of 10 days. In the meantime status quo as existed today shall be maintained. List it for, further orders on 13-11-2003 at INDORE C.C. be granted. " More or less similar is the order passed in O.A. No. 754/2003 in case of Collector Jashpur. The bone of contention is the interim order in both case to the effect that "As regards interim, a short reply be filed by the respondents within a period of 10 days. In the meantime the status quo as existed today shall be maintained. " 13. It is submitted that the petitioner/Election Commission filed reply before the learned Central Administrative Tribunal. It also filed its letter dated 28-10-2003 Annexure (R-l/l), addressed to the Chief Secretary, State of C.G. Annexure R.1/1 dated 28-10-2003 is relevant and quoted below:- "Dear Sir, The Commission had received following complaints regarding violation of Model Code of Conduct in Jashpur and Bastar' Districts. 1. The school bags with the photographs of Shri Ajit Jogi, Chief Minister of Chhattisgarh are continuing to be distributed. 2. Some spectacles under a Government programme were distributed by the wife of Shri Ajit Jogi, the Chief Minister of Chhattisgarh in official functions organized in Jashpur and Bastar' District. 3. The District Collector of Jashpur travelled with Shri Ajit Jogi, Chief Minister of Chhattisgarh on a private helicopter requisitioned for election work by the Chief Minister. The Commission had sought explanations of the District. Election Officers and District Collectors of Jashpur and Bastar' regarding the se violations. After considering the explanations offered by them, the Commission finds their conduct unbecoming of civil servants who exercise statutory powers as District Election Officers and Returning Officers durings the election period. The Commission has directed that these officers may be relieved of their duties as District Election Officers and District Collectors with immediate effect and given such positions that do not entail election related responsibilities. A panel of names of IAS officers may kindly be sent by return fax for the consideration of the Commission for appointment as District Collector and District Election Officers of Jashpur and Bastar Districts. Yours sincerely (Anand Kumar)" 14. The petitioner/Election Commission also filed an application for vacating stay and also filed an application for pre-ponement of the date of hearing as the nomination was to start from 7-11-2003.
Yours sincerely (Anand Kumar)" 14. The petitioner/Election Commission also filed an application for vacating stay and also filed an application for pre-ponement of the date of hearing as the nomination was to start from 7-11-2003. The case came up for hearing before the learned Central Administrative Tribunal on 5-11-2003 and the learned Tribunal passed similar orders in both the petitions which read as under :- "5.11.2003 Shri S.D. Gupta, learned counsel for the applicant. Shri K.K. Trivedi, learned counsel for respondent No. 1 Shri K.N. Pethia, learned counsel for respondent No.3. None for respondent No.2 This case was earlier fixed for orders on 13.11.2003 at Indore. The respondent no.1 has filed M.A. No. 1487/2003 for pre-ponement. Accordingly, the case is taken up today. The order of status-quo was passed by this Tribunal on 31.10.2003 and in terms of the provisions of proviso to Section 24(b) of the Administrative Tribunals Act, 1985, the case was directed to be listed for hearing on 13.10.03. As there was no Bench available at Jabalpur, the case was listed for hearing at Indore on 13.11.2003. One of the grounds taken by the respondent No. 1 for pre-poning the date of hearing is the inconvenience to be faced for hearing at Indore. The respondent No.1 has also filed an application for vacation of stay (MA No. 1497/2003) and also a short reply to the OA. The Registry has pointed out that a copy of the same has not been served to t le opposite parties. The learned counsel for the applicant submits that a copy of the same has been received by him only yesterday and he wants some short adjournment to reply to the aforesaid MA for vacation of stay. he further submits that unless an opportunity of hearing is given to the applicant to submit his case against the MA for vacation of stay, he cannot argue the case properly. At this stage both the learned counsel for applicant as well as respondent No. 1 agreed that the case may be finally fixed for hearing at Jabalpur on 21.11.2003. Accordingly, list this case for final hearing at Jabalpur on 21.11.2003. In the meantime the respondents No.2 & 3 are directed to file their replies. MA 1487/2003 is accordingly disposed of and the MA 149712003 will be taken up for hearing at the time of final hearing. Interim order to continue.
Accordingly, list this case for final hearing at Jabalpur on 21.11.2003. In the meantime the respondents No.2 & 3 are directed to file their replies. MA 1487/2003 is accordingly disposed of and the MA 149712003 will be taken up for hearing at the time of final hearing. Interim order to continue. C.C. be granted to the learned counsel for parties as per rules." 15. The present petitions have been filed by the petitioner/Election Commission against the order of respondent No.3 dated 31-10-2003 as well as order dated 5.11.2003. 16. These matters came up for hearing on 7 -11-2003 and after hearing the counsel for the petitioner/Election Commission, notices were issued to respondent No.2 in each petitions, the Addl. Advocate General took notice on behalf of the State/respondent No.1 and as the Union of India was also a party before the Tribunal, notice was also given/to the Sr. Standing Counsel for the Union of India, Shri Vinay Barit. On 10-11-2003, it was submitted that returns on behalf of respondents No. 1 and 2 have been filed. It was stated by Shri Vinay Barit that he adopts the argument of the counsel for the petitioner. Counsel agreed that the matter be heard finally and accordingly heard. 17. Dr. Shukla, Add 1. Advocate General appearing for the respondent No.1/State submitted that the State of CG on the receipt of order dated 2810-2003 issued by the Election Commission, issued order dated 29-10-2003 regarding posting of the Collector, Jashpur and Collector Bastar and as such complied with the direction of Election Commission. It is submitted that Collector Jashpur and Collector Bastar filed the petitions before the Central Administrative Tribunal and it is the Central Administrative Tribunal, which has passed the order. It is reiterated that State on its return has stated legal submissions before this Court although on its part it has complied the order. In para vi of return, it is stated that the order is consent order and as such it cannot be challenged as the same has been passed by the Tribunal which has jurisdiction. The other contention is that the orders are interim orders and as such not amenable to writ jurisdiction of this Court under Article 227 of the Constitution of India. It is also submitted that Section 24 enables the Tribunal to pass interim orders and that having been passed cannot be challenged.
The other contention is that the orders are interim orders and as such not amenable to writ jurisdiction of this Court under Article 227 of the Constitution of India. It is also submitted that Section 24 enables the Tribunal to pass interim orders and that having been passed cannot be challenged. It is further submitted that the Election Commission has already surrendered to the jurisdiction of Central Administrative Tribunal by submitting reply to the main application as well as application for vacating stay. It is also contended that the Tribunals have been constituted under Article 323-A of the Constitution and cannot be subjected to judicial review. It has been contended that the Commission has recorded a categorical finding that the respondent No. 2 conducted in a manner which is unbecoming of a civil servant and the Election Commission conducted an enquiry on the complaint made to it by seeking explanations from the respondent No.2 and further that the election Commission considered the material which was placed before it including the complaint and explanation of respondent no. 2. It is also contended that the Election Commission (petitioner) reached to the conclusion after due consideration that respondent no. 2 is guilty of misconduct to such an extent that his conduct is "unbecoming of a Civil Servant." It is further contended that the above findings of the Election Commission which is a Constitutional Body of the highest rank would adversely affect the future prospects of respondent no. 2 and it would be a weapon in the hands of the other competitors for the future promotion against respondent no. 2. It is also submitted that the material which is in possession of respondent/State shows that the respondent No. 2 is not guilty of violating of any code of conduct laid down by the Election Commission. Lastly it is reiterated that the jurisdiction is vested with the Central Administrative Tribunal. 18. The respondent No.2 in each of the petitions have filed the return contending that the order passed by the State on 29-10-2003 is illegal and contrary to law. It is also submitted that Collector Bastar has not received any communication and explanation was not called for and he has not submitted any explanation. It is contended that the Tribunal has rightly passed the interim order and the order is consent order.
It is also submitted that Collector Bastar has not received any communication and explanation was not called for and he has not submitted any explanation. It is contended that the Tribunal has rightly passed the interim order and the order is consent order. It is further submitted that the respondent No. 2 have not violated any code of conduct. They have complied with the directions, they cannot be without remedy and they have exercised their right by invoking jurisdiction of Central Administrative Tribunal and further the Tribunal has acted in accordance with law. It is submitted that the respondent/Collectors are being victimized. 19. Section 14 of the Administrative Tribunals Act deals with jurisdiction, powers and authority of the Administrative Tribunals. Section 14 reads as under :- "14.
It is submitted that the respondent/Collectors are being victimized. 19. Section 14 of the Administrative Tribunals Act deals with jurisdiction, powers and authority of the Administrative Tribunals. Section 14 reads as under :- "14. Jurisdiction, powers and authority of the Central Administrative Tribunal- (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to – (a) reeruitment, and matters concerning reeruitment, to any all-India Service or to any civil service of the union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian; (b) all service matters concerning- (i) a member of any All-India Service; or (ii) a person [not being a member of an All India Service or a person referred to in clause (c)] appointed to any civil service of the Union or any civil post under the Union; or (iii) a civilian [not being a member of an All-India Service or a person referred to in clause(c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government; (c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment. " 20. Section 24 of the Administrative Tribunals Act confers jurisdiction and conditions as to making of interim orders. Section 24 of the Administrative Tribunals Act is also relevant and quoted below : "24.
" 20. Section 24 of the Administrative Tribunals Act confers jurisdiction and conditions as to making of interim orders. Section 24 of the Administrative Tribunals Act is also relevant and quoted below : "24. Conditions as to making of interim orders – Not withstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless- (a) copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or porposed to be made; and' (b) opportunity is given to such party to be heard in the matter: Provided that a Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order." 21. It is borne out from the record that the Election Commission as per Annexure P-11 on October 28, 2003, which has been quoted above, issued a direction that these officers i.e. respondent No.2 in each petition, may be relieved of their duties as District Election Officers and District Collectors with immediate effect and given such postings that do not entail election related responsibilities. It was further directed that a panel of names of IAS officers may be sent by return fax for the consideration of the Commission for appointment as District Collector and District Election Officers of Jashpur and Bastar Districts. 22. The State of Chhattisgarh on 29-1 0-2003 passed an order in respect of L.N. Suryawanshi and Shri B.S. Anant as per Annexure P-9. Annexure P-9 is quoted below HINDI "1. m~.~.~, m.ST.B. (1992)~, ~~cit~gmqB ~mB3Wwft~(fCf)~~, ~-d1(1'I m ~~I 2. m¢fi.QJ1.
22. The State of Chhattisgarh on 29-1 0-2003 passed an order in respect of L.N. Suryawanshi and Shri B.S. Anant as per Annexure P-9. Annexure P-9 is quoted below HINDI "1. m~.~.~, m.ST.B. (1992)~, ~~cit~gmqB ~mB3Wwft~(fCf)~~, ~-d1(1'I m ~~I 2. m¢fi.QJ1. 31-Mf, m.sr.B. (1993)~, ~- ~cit~~B ~mB3Wwft~(fCf)~~, ~-d1(1'I m ~~I ~-d1(1'I QJ1.t.m~, ~~" 23. Article 324 of Constitution deals with superintendence, direction and control of elections to be vested in an Election Commission. Article 324(1) and 324(6) of the Constitution of India are relevant and quoted below : "324. Superintendence, direction and control of elections to be vested in an Election Commission - (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as Election Commission.) (2) ..................... (3) ..................... (4) ..................... (5) ..................... (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commissioner or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1). 24. The Representation of the People Act 1950 and Representation of the People Act 1951 have also been referred to by the counsel for the parties. Section 13 CC of the Representation of People Act 1950 is relevant quoted below :- "13CC. Chief Electoral Officers, District Election Officers, etc. deemed to be on deputation to Election Commission - The officers referred to in this Part and any other officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of, all elections shall be deemed. to be on deputation to the Election Commission for the period during which they are so employed and such officers and staff shall, during that period, be subject to the control, superintendence and discipline of the Election Commission. " ORDER As per Hon'ble Shri Fakhruddin, J.- 1. Both these petitions involve similar questions, as such they have been heard together and being disposed of by common order. 2.
" ORDER As per Hon'ble Shri Fakhruddin, J.- 1. Both these petitions involve similar questions, as such they have been heard together and being disposed of by common order. 2. The superintendence, directions and control of elections, preparation of Electoral rolls and conduct of all Elections for Parliament and State Legislature of every State vests under Article 324(1) of Constitution of India in Election Commission of India. It is provided that under Article 324(6) of the Constitution of India that the President or the Governor shall when requested by the Election Commission make available to it such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Article 324(1) of the Constitution. 3. It is submitted by the petitioner that by notification issued by the Commission, the State of Chhattisgarh made available the staff including District Collectors/District Magistrate of the District and they have been notified as District Election Officer/District Returning Officer. It is contended that these officers/ in the context of election related work are deemed to be on deputation to the Election Commission and subject to its disciplinary control. This has been made explicit according to petition under Section 13CC of the Representation of the People Act 1950 and Section 28A of the Representation of the People Act 1951. 4. It is submitted that the question of disciplinary jurisdiction of the Election Commission of India over officers under employment of Union of India and Governments of the States, Union Territories was the subject matter of Writ Petition (Civil) No. 606 of 1993 filed by the Election Commission of India before Hon'ble the Supreme Court under Article 32 of the Constitution of India. During pendency of the writ petition with a view to resolving certain differences that had arisen between the Election Commission of India and Union of India discussions were held between the said parties as well as nine other State Governments which were parties to the writ petition.
During pendency of the writ petition with a view to resolving certain differences that had arisen between the Election Commission of India and Union of India discussions were held between the said parties as well as nine other State Governments which were parties to the writ petition. Consequent thereto, certain agreed terms of settlement were arrived at between the Election Commission of India and the Union of India as under :- "The disciplinary functions of the Election Commission over officers, staff and police deputed to perform election duties shall extend to- (a) Suspending any officer/official/police personnel for insubordination or dereliction of duty; (b) Substituting any officer/official/police personnel by another such person, and returning the substituted individual to the cadre to which he belongs, with appropriate report on his conduct' (c) Making recommendation to the competent authority, for taking disciplinary action, for any act of insubordination or dereliction of duty, while on election duty. Such recommendation shall be promptly acted upon by the disciplinary authority, and action taken will be communicated to the Election Commission; within a period of 6 months from the date of the Election Commission's recommendation. (d) The Government of India will advise the State Governments that they too should follow the above principles and decisions, since a large number of election officials are under their administrative control. " 5. It is submitted that the above terms of settlement were taken note of by Hon 'ble the Supreme Court and W.P. No. 606/1993 was disposed of in terms of settlement vide order dated 21-9-2000. A copy of which has been field as Annexure P-1. Annexure P-1 is relevant and quoted below : ORDER I.A. No.5 of2000 in W.P. (C) No. 606 of 1993 As between the Election Commission of India and the Union of India (the petitioner and the first respondent to the writ petition, it is agreed that the writ petition be disposed of in terms of the Terms of Settlement recorded in paragraph (3) of the interim application. Learned counsel for the election Commission and the Union of India states that the States of Tripura, Maharashtra, Tamil Nadu, Andhra Pradesh and Mizoram have accepted these terms in toto. Insofar as other States are concerned, there is some reservation either in respect of one or the other term or altogether. The writ petition is disposed of in terms of aforesaid Terms of Settlements.
Insofar as other States are concerned, there is some reservation either in respect of one or the other term or altogether. The writ petition is disposed of in terms of aforesaid Terms of Settlements. As against States other than respondents 4, 6 and 7, the writ petition is allowed to be withdrawn and the issue is left open to be agitated in the appropriated proceedings, if raised. S.L.P. (C) No. 12481 of 1993. Learned counsel for the Election Commission of India (petitioner states that the special leave petition has become infructuous. It is disposed of as such. S.L.P. (C) No. 12721 of 1993 Learned counsel states that the issue involved in the original writ petition has been settled. On the application of learned counsel for the petitioner, the special petition is dismissed as withdrawn. T.P. (C) No. 772 of 1993 : The transfer petition relating to the afore-mentioned writ petition, therefore, does not survive and is dismissed as withdrawn. T.P. (C) No. 774-75 of1993: Learned counsel for the Election Commission of India (petitioner) states that these transfer petitions have become infructuous. They are disposed of as such. T.(C) No. 39 of 1998. The petitioner in-person is not present despite notice. In any event, the issue is now settled by the Terms of Settlement between the Election Commission of India and the Union of India in Writ petition (c) No.606 of 1993. The transferred case is, therefore dismissed." 6. It is further submitted that consequent to Annexure P-1, the Ministry of Personnel, Public Grievances and Pension issued Office Memoranda dated 7-11-2000 (Annexure P-2) and on 8-11-2000 Union of India addressed to all States Governments and Union Territories conveying to them the terms of settlement and requested that the State Governments may follow the terms of settlement in the case of officials deputed for Election duties by the State Government. Copy of which has been filed as Annexure P-3. 7. It is contended that the Election Commission had issued directives regarding banning the transfer of officers connected with the General Election/Bye Election and some of them are filed as Annexure P 4. It is contended that the petitioner has also issued Code of Conduct for universal application in the States where the Assembly elections are to take place in the Month of November and December, 2003. A Compendium of Directions /instructions is filed as Annexure P-5. 8.
It is contended that the petitioner has also issued Code of Conduct for universal application in the States where the Assembly elections are to take place in the Month of November and December, 2003. A Compendium of Directions /instructions is filed as Annexure P-5. 8. It is submitted that the directions/instructions came to the knowledge of respondent No.2 on or about 10th October 2003. It is stated that the petitioner enjoys residuary powers for which no specific law has been made or any statutory rules issued and uses such jurisdiction with regard to such residuary powers as and when deemed fit in the larger interest of free and fair elections and therefore the provision is made that "in the special circumstances, transfers could be effected after permission of the Election Commission. " 9. It is said that these powers are for a very limited period i.e. during the course of election proceedings. It is contended that respondent No. 3 Central Administrative Tribunal has been constituted. The jurisdiction, powers and authority of the Central Administrative Tribunal is given in Section - 14 of the 1985 Act. It is submitted that Section 3(a) defines service matters. The contention is that action of petitioner is that of merely shifting and does not fall within the mischief of the definition of service matters. It is submitted that the petitioner passed the order dated October 28, 2003 and- issued directions to the State against Collectors of Jashpur and Bastar for posting to Mantralaya. The State therefore passed order on 29th October 2003 posting them to Mantralaya. It is stated that the Commission passed the order on receipt of the complaints. The Commission sought explanations of the District Election Officer and District Collectors of Jashpur and Bastar regarding violation of the Code of Conduct by them and after considering the explanations offered by them, the Election Commission directed that these officers be relieved of their duties as District Election Officers and District Collectors with immediate effect and given such postings that do not entail election related responsibilities. It is also submitted that a panel of names of IAS officers was called for by return fax for the consideration of the Commission for appointment as District Collectors and District Election Officer of Jashpur and Bastar districts. 10.
It is also submitted that a panel of names of IAS officers was called for by return fax for the consideration of the Commission for appointment as District Collectors and District Election Officer of Jashpur and Bastar districts. 10. Counsel for the petitioner submits that the respondent No.2 in each case holding the post of District Election Officer by virtue of Collector/ District Magistrate presented the petitions before the Central Administrative Tribunal aggrieved by the order passed by the State. The reliefs claimed in those petitions are identical and are quoted below : "(i) to quash the impugned order dated (Annexure A-9) passed by the respondent No.1. (ii) to call the relevant records. (iii) This Hon'ble Tribunal may kindly be further pleased to pass any such other orders as this Hon'ble Tribunal may deem fit under the circumstances of the case." 11. The interim relief claimed in para 9 of the petition before the Central Administrative Tribunal is quoted below : "Pending final decision, the operation and effect of the impugned order dated Annexure A-9, passed by the respondent No.1, may please be stayed and the petitioner be allowed to continue at the present place of posting." 12. The matter came up for hearing before the Central Administrative Tribunal, which after hearing the counsel appearing for respective Collectors passed the orders on 31-10-2003. This order dated 31-10-2003 passed in O.A. No. 755/2003 in case of Collector Jagdalpur by the Tribunal reads as under :- "31.10.2003 Shri P.R. Bhave, learned Senior Advocate with Shri S.D. Gupta, learned counsel for the applicant. Heard the learned counsel for the applicant. The applicant who is a Collector and District Magistrate at Jagdalpur (Chhattisgarh) has filed this Original Application and has sought a direction to quash the order dated 29-10-2003 (Annexure A-7) by which he has been transferred to Secretariat Chhattisgarh State, Raipur. He has further sought a direction that pending final decision of this OA, the operation and effect of the impugned order dated 29-102003 be stayed. It has been alleged by the applicant that the impugned order passed by the respondent is arbitrary, punitive in nature and not in compliance of the principles of audialtarum partam.
He has further sought a direction that pending final decision of this OA, the operation and effect of the impugned order dated 29-102003 be stayed. It has been alleged by the applicant that the impugned order passed by the respondent is arbitrary, punitive in nature and not in compliance of the principles of audialtarum partam. According to the applicant he has been transferred on the ground that he has violated the directions of the Election Commission and allowed the distribution of five school bags even after the order of the Election Commission to stop the same. The applicant has stated that there is no lapse on the part of him and the directions issued by the Election Commission were promptly complied by him. He further submitted that the opportunity to furnish explanation given by the Election Commission was an empty formality, since the Election Commission has not considered the applicant's explanation before passing the impugned order. We are well aware of the legal position laid down by the Hon'ble Supreme Court that the Court/Tribunal should not interfere in the matter of transfers unless they are violative of statutory rules or have been issued with malafide intention or are punitive in nature. In this case the applicant has alleged that the transfer made by the respondents is arbitrary and punitive in nature and is in violation of principles of natural justice and Article 14 of the Constitution of India. Issue notice to the respondents to show cause as to why this case be not admitted. Shri K.N. Pethia, Additional Standing Counsel for UOI present in the Court takes notice on behalf of respondent No.3. The learned counsel for the applicant is directed to serve notices to respondents 1 & 2 by speed post. Let reply be filed within a period of four weeks and rejoinder, if any, within a period of two weeks thereafter. As regards interim relief, a short reply be fired by the respondents within a period of 10 days. In the meantime status quo as existed today shall be maintained. List it for, further orders on 13-11-2003 at INDORE C.C. be granted. " More or less similar is the order passed in O.A. No. 754/2003 in case of Collector Jashpur.
As regards interim relief, a short reply be fired by the respondents within a period of 10 days. In the meantime status quo as existed today shall be maintained. List it for, further orders on 13-11-2003 at INDORE C.C. be granted. " More or less similar is the order passed in O.A. No. 754/2003 in case of Collector Jashpur. The bone of contention is the interim order in both case to the effect that "As regards interim, a short reply be filed by the respondents within a period of 10 days. In the meantime the status quo as existed today shall be maintained. " 13. It is submitted that the petitioner/Election Commission filed reply before the learned Central Administrative Tribunal. It also filed its letter dated 28-10-2003 Annexure (R-l/l), addressed to the Chief Secretary, State of C.G. Annexure R.1/1 dated 28-10-2003 is relevant and quoted below:- "Dear Sir, The Commission had received following complaints regarding violation of Model Code of Conduct in Jashpur and Bastar' Districts. 1. The school bags with the photographs of Shri Ajit Jogi, Chief Minister of Chhattisgarh are continuing to be distributed. 2. Some spectacles under a Government programme were distributed by the wife of Shri Ajit Jogi, the Chief Minister of Chhattisgarh in official functions organized in Jashpur and Bastar' District. 3. The District Collector of Jashpur travelled with Shri Ajit Jogi, Chief Minister of Chhattisgarh on a private helicopter requisitioned for election work by the Chief Minister. The Commission had sought explanations of the District. Election Officers and District Collectors of Jashpur and Bastar' regarding the se violations. After considering the explanations offered by them, the Commission finds their conduct unbecoming of civil servants who exercise statutory powers as District Election Officers and Returning Officers durings the election period. The Commission has directed that these officers may be relieved of their duties as District Election Officers and District Collectors with immediate effect and given such positions that do not entail election related responsibilities. A panel of names of IAS officers may kindly be sent by return fax for the consideration of the Commission for appointment as District Collector and District Election Officers of Jashpur and Bastar Districts. Yours sincerely (Anand Kumar)" 14. The petitioner/Election Commission also filed an application for vacating stay and also filed an application for pre-ponement of the date of hearing as the nomination was to start from 7-11-2003.
Yours sincerely (Anand Kumar)" 14. The petitioner/Election Commission also filed an application for vacating stay and also filed an application for pre-ponement of the date of hearing as the nomination was to start from 7-11-2003. The case came up for hearing before the learned Central Administrative Tribunal on 5-11-2003 and the learned Tribunal passed similar orders in both the petitions which read as under :- "5.11.2003 Shri S.D. Gupta, learned counsel for the applicant. Shri K.K. Trivedi, learned counsel for respondent No. 1 Shri K.N. Pethia, learned counsel for respondent No.3. None for respondent No.2 This case was earlier fixed for orders on 13.11.2003 at Indore. The respondent no.1 has filed M.A. No. 1487/2003 for pre-ponement. Accordingly, the case is taken up today. The order of status-quo was passed by this Tribunal on 31.10.2003 and in terms of the provisions of proviso to Section 24(b) of the Administrative Tribunals Act, 1985, the case was directed to be listed for hearing on 13.10.03. As there was no Bench available at Jabalpur, the case was listed for hearing at Indore on 13.11.2003. One of the grounds taken by the respondent No. 1 for pre-poning the date of hearing is the inconvenience to be faced for hearing at Indore. The respondent No.1 has also filed an application for vacation of stay (MA No. 1497/2003) and also a short reply to the OA. The Registry has pointed out that a copy of the same has not been served to t le opposite parties. The learned counsel for the applicant submits that a copy of the same has been received by him only yesterday and he wants some short adjournment to reply to the aforesaid MA for vacation of stay. he further submits that unless an opportunity of hearing is given to the applicant to submit his case against the MA for vacation of stay, he cannot argue the case properly. At this stage both the learned counsel for applicant as well as respondent No. 1 agreed that the case may be finally fixed for hearing at Jabalpur on 21.11.2003. Accordingly, list this case for final hearing at Jabalpur on 21.11.2003. In the meantime the respondents No.2 & 3 are directed to file their replies. MA 1487/2003 is accordingly disposed of and the MA 149712003 will be taken up for hearing at the time of final hearing. Interim order to continue.
Accordingly, list this case for final hearing at Jabalpur on 21.11.2003. In the meantime the respondents No.2 & 3 are directed to file their replies. MA 1487/2003 is accordingly disposed of and the MA 149712003 will be taken up for hearing at the time of final hearing. Interim order to continue. C.C. be granted to the learned counsel for parties as per rules." 15. The present petitions have been filed by the petitioner/Election Commission against the order of respondent No.3 dated 31-10-2003 as well as order dated 5.11.2003. 16. These matters came up for hearing on 7 -11-2003 and after hearing the counsel for the petitioner/Election Commission, notices were issued to respondent No.2 in each petitions, the Addl. Advocate General took notice on behalf of the State/respondent No.1 and as the Union of India was also a party before the Tribunal, notice was also given/to the Sr. Standing Counsel for the Union of India, Shri Vinay Barit. On 10-11-2003, it was submitted that returns on behalf of respondents No. 1 and 2 have been filed. It was stated by Shri Vinay Barit that he adopts the argument of the counsel for the petitioner. Counsel agreed that the matter be heard finally and accordingly heard. 17. Dr. Shukla, Add 1. Advocate General appearing for the respondent No.1/State submitted that the State of CG on the receipt of order dated 2810-2003 issued by the Election Commission, issued order dated 29-10-2003 regarding posting of the Collector, Jashpur and Collector Bastar and as such complied with the direction of Election Commission. It is submitted that Collector Jashpur and Collector Bastar filed the petitions before the Central Administrative Tribunal and it is the Central Administrative Tribunal, which has passed the order. It is reiterated that State on its return has stated legal submissions before this Court although on its part it has complied the order. In para vi of return, it is stated that the order is consent order and as such it cannot be challenged as the same has been passed by the Tribunal which has jurisdiction. The other contention is that the orders are interim orders and as such not amenable to writ jurisdiction of this Court under Article 227 of the Constitution of India. It is also submitted that Section 24 enables the Tribunal to pass interim orders and that having been passed cannot be challenged.
The other contention is that the orders are interim orders and as such not amenable to writ jurisdiction of this Court under Article 227 of the Constitution of India. It is also submitted that Section 24 enables the Tribunal to pass interim orders and that having been passed cannot be challenged. It is further submitted that the Election Commission has already surrendered to the jurisdiction of Central Administrative Tribunal by submitting reply to the main application as well as application for vacating stay. It is also contended that the Tribunals have been constituted under Article 323-A of the Constitution and cannot be subjected to judicial review. It has been contended that the Commission has recorded a categorical finding that the respondent No. 2 conducted in a manner which is unbecoming of a civil servant and the Election Commission conducted an enquiry on the complaint made to it by seeking explanations from the respondent No.2 and further that the election Commission considered the material which was placed before it including the complaint and explanation of respondent no. 2. It is also contended that the Election Commission (petitioner) reached to the conclusion after due consideration that respondent no. 2 is guilty of misconduct to such an extent that his conduct is "unbecoming of a Civil Servant." It is further contended that the above findings of the Election Commission which is a Constitutional Body of the highest rank would adversely affect the future prospects of respondent no. 2 and it would be a weapon in the hands of the other competitors for the future promotion against respondent no. 2. It is also submitted that the material which is in possession of respondent/State shows that the respondent No. 2 is not guilty of violating of any code of conduct laid down by the Election Commission. Lastly it is reiterated that the jurisdiction is vested with the Central Administrative Tribunal. 18. The respondent No.2 in each of the petitions have filed the return contending that the order passed by the State on 29-10-2003 is illegal and contrary to law. It is also submitted that Collector Bastar has not received any communication and explanation was not called for and he has not submitted any explanation. It is contended that the Tribunal has rightly passed the interim order and the order is consent order.
It is also submitted that Collector Bastar has not received any communication and explanation was not called for and he has not submitted any explanation. It is contended that the Tribunal has rightly passed the interim order and the order is consent order. It is further submitted that the respondent No. 2 have not violated any code of conduct. They have complied with the directions, they cannot be without remedy and they have exercised their right by invoking jurisdiction of Central Administrative Tribunal and further the Tribunal has acted in accordance with law. It is submitted that the respondent/Collectors are being victimized. 19. Section 14 of the Administrative Tribunals Act deals with jurisdiction, powers and authority of the Administrative Tribunals. Section 14 reads as under :- "14.
It is submitted that the respondent/Collectors are being victimized. 19. Section 14 of the Administrative Tribunals Act deals with jurisdiction, powers and authority of the Administrative Tribunals. Section 14 reads as under :- "14. Jurisdiction, powers and authority of the Central Administrative Tribunal- (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to – (a) reeruitment, and matters concerning reeruitment, to any all-India Service or to any civil service of the union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian; (b) all service matters concerning- (i) a member of any All-India Service; or (ii) a person [not being a member of an All India Service or a person referred to in clause (c)] appointed to any civil service of the Union or any civil post under the Union; or (iii) a civilian [not being a member of an All-India Service or a person referred to in clause(c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government; (c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment. " 20. Section 24 of the Administrative Tribunals Act confers jurisdiction and conditions as to making of interim orders. Section 24 of the Administrative Tribunals Act is also relevant and quoted below : "24.
" 20. Section 24 of the Administrative Tribunals Act confers jurisdiction and conditions as to making of interim orders. Section 24 of the Administrative Tribunals Act is also relevant and quoted below : "24. Conditions as to making of interim orders – Not withstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless- (a) copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or porposed to be made; and' (b) opportunity is given to such party to be heard in the matter: Provided that a Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order." 21. It is borne out from the record that the Election Commission as per Annexure P-11 on October 28, 2003, which has been quoted above, issued a direction that these officers i.e. respondent No.2 in each petition, may be relieved of their duties as District Election Officers and District Collectors with immediate effect and given such postings that do not entail election related responsibilities. It was further directed that a panel of names of IAS officers may be sent by return fax for the consideration of the Commission for appointment as District Collector and District Election Officers of Jashpur and Bastar Districts. 22. The State of Chhattisgarh on 29-1 0-2003 passed an order in respect of L.N. Suryawanshi and Shri B.S. Anant as per Annexure P-9. Annexure P-9 is quoted below HINDI "1. m~.~.~, m.ST.B. (1992)~, ~~cit~gmqB ~mB3Wwft~(fCf)~~, ~-d1(1'I m ~~I 2. m¢fi.QJ1.
22. The State of Chhattisgarh on 29-1 0-2003 passed an order in respect of L.N. Suryawanshi and Shri B.S. Anant as per Annexure P-9. Annexure P-9 is quoted below HINDI "1. m~.~.~, m.ST.B. (1992)~, ~~cit~gmqB ~mB3Wwft~(fCf)~~, ~-d1(1'I m ~~I 2. m¢fi.QJ1. 31-Mf, m.sr.B. (1993)~, ~- ~cit~~B ~mB3Wwft~(fCf)~~, ~-d1(1'I m ~~I ~-d1(1'I QJ1.t.m~, ~~" 23. Article 324 of Constitution deals with superintendence, direction and control of elections to be vested in an Election Commission. Article 324(1) and 324(6) of the Constitution of India are relevant and quoted below : "324. Superintendence, direction and control of elections to be vested in an Election Commission - (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as Election Commission.) (2) ..................... (3) ..................... (4) ..................... (5) ..................... (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commissioner or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1). 24. The Representation of the People Act 1950 and Representation of the People Act 1951 have also been referred to by the counsel for the parties. Section 13 CC of the Representation of People Act 1950 is relevant quoted below :- "13CC. Chief Electoral Officers, District Election Officers, etc. deemed to be on deputation to Election Commission - The officers referred to in this Part and any other officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of, all elections shall be deemed. to be on deputation to the Election Commission for the period during which they are so employed and such officers and staff shall, during that period, be subject to the control, superintendence and discipline of the Election Commission. "