Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 362 (CHH)

Kailash Ram Bhagat v. State of Chhattisgarh

2014-10-15

SANJAY K.AGRAWAL

body2014
ORDER 1. Petitioner herein questions the legality and validity of the impugned transfer order dated 27.07.2013 (Annexure P/1), by which, the petitioner has been transferred from the post of Assistant Chief Election Officer State Election Commission, Raipur (Chhattisgarh) to Deputy Collector, Bijapur (Chhattisgarh). 2. The petitioner is holding substantive post of Deputy Collector. The petitioner was working as a Deputy Collector, Durg by order dated 09.09.2011, he was transferred and posted as Assistant Chief Election Officer Raipur, Chhattisgarh against the post of Deputy Chief Election Officer. Thereafter, by order impugned, he was transferred as Deputy Collector, Bijapur. He made a representation to the State Government on 29.07.2013 against his order of transfer. His representation was considered and came to be rejected on 22.08.2013 holding that he has been transferred after discussion and consent of Chief Electoral Officer, Chhattisgarh. 3. The petitioner herein has filed this writ petition challenging the impugned transfer order on the ground that the order of transfer passed by the State Government is in violation of the provision contained in Section 28A of the Representation of the People Act, 1951 (R.P. Act, 1951 for brevity), and therefore, he could not have been transferred without consent and approval of the State Election Commission, as such, the order of transfer being malafide, arbitrary, illegal and passed in contravention of Section 28A of the R.P. Act, 1951 deserves to be set aside. 4. The respondent No. 1 State Government has filed its return stating that the petitioner’s representation against the order of transfer has already been considered and rejected, as he has been transferred with the discussion and consent of Chief Electoral Officer and has further stated that the legislative assembly election has been over and as such, petitioner has been transferred on account of administrative exigency and there is no ground to interfere in the order of transfer. 5. The Election Commission of India/respondent No. 2 has also filed its return stating inter alia that the petitioner was posted as Assistant Chief Electoral Officer against vacant post of Deputy Chief Electoral Officer, as at that very time, post of Assistant Chief Electoral Officer was not vacant. 5. The Election Commission of India/respondent No. 2 has also filed its return stating inter alia that the petitioner was posted as Assistant Chief Electoral Officer against vacant post of Deputy Chief Electoral Officer, as at that very time, post of Assistant Chief Electoral Officer was not vacant. It is further pleaded that by order dated 17.09.2013, Smt. Jaishree Jain has been posted as Deputy Chief Electoral Officer with the prior approval of Election Commission of India, and therefore, it is for the State Government to consider as to whether petitioner would remain continue in the present place of posting or is required to comply with the impugned order of transfer passed by State Government/respondent No. 1. 6. I have heard learned counsel appearing for the parties and considered rival submissions made therein and also gone through the papers available with utmost circumspection. 7. The neat question that arises for consideration in this petition is whether the impugned order of transfer passed by respondent No. 1/State Government is in violation of Section 28A of the R.P. Act, 1951 and thereby it is illegal and arbitrary. 8. In order to consider the challenge made to the impugned order of transfer, it would be proper to have a quick notice of relevant provision contained in Section 28A of the R.P. Act, 1951, which states thus: “28A. Returning Officer, Presiding Officer, etc. deemed to be on deputation to Election Commission. The Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officer and any other officer appointed under this Part, and any Police Officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall during that period, be subject to control, superintendence and discipline of the Election Commission.” 9. From careful and close perusal of provision would show that the Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officer and any other Officer appointed under this Part, for the conduct of any Election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of notification calling for such election and ending with the date of declaration of the results of such election and accordingly such officers shall during that period, be subject to the control, superintendence and discipline of the Election Commission. 10. The Division Bench of Madhya Pradesh High Court in Umesh Singh Yadav vs. Collector/District Returning Officer, 1992 M.P.L.J. 173, after reproducing Section 28C has expressed opinion that the control, superintendence and discipline vested only with Election Commission during the period of election and held as under: “6. On a plain reading of the above provisions, it is clear that the authority to take disciplinary action is vested only with Election Commission and during the period of election.” 11. The aforesaid decision has been followed by Madhya Pradesh High Court in S.K. Tripathi vs. State of M.P. and others, 2009(3) M.P.H.T. 504 and held as under: “9. What has been stated by the Division Bench is that the power vests in the Election Commission for taking action against incumbents who are working during the election and deemed to be on duty with the Election Commission. That is the ratio of the said decision. I have said so because in Paragraph 6 of the decision the Division Bench has expressed the view that the power of superintendence, control and discipline is only conferred on the Election Commission in respect of various officers working during election. The term only is of immense significance.” 12. It is stated at the bar, that in the present case, the election notification calling for State Assembly Election, 2013 was issued on 04.10.2013 and the impugned order of transfer has been passed on 27.07.2013, as such, the order of transfer has been passed much prior to issuance of the election notification calling for Election and as such, Section 28A of the R.P. Act, 1951 is not attracted to the facts of the present case, and therefore, the submission rested on Section 28A of the R.P. Act, 1951 deserves to be and is hereby rejected. 13. 13. The respondent No. 1 has clearly mentioned in the order rejecting representation of the petitioner dated 22.08.2013 that petitioner’s service has been transferred after discussion and consent of the Chief Electoral Officer, Chhattisgarh and no rejoinder has been filed by the petitioner controverting that he has not been transferred with the consent of Chief Electoral Officer, Chhattisgarh. Apart from this, the Election Commission impleaded as respondent No. 2 herein has not supported the case of the petitioner and has clearly stated in its counter affidavit that the petitioner was posted against the vacant post of Deputy Chief Electoral Officer and now the post of Deputy Chief Electoral Officer has already been filled up on appointment of Smt. Jaishree Jain by order dated 17.09.2013 vide Annexure R2/2, and as such, the State Government is free to take services of the petitioner on the basis of administrative exigency. 14. It is settled law that writ Court does not ordinarily interfere with order of transfer unless it is found to be in contravention of the statutory Rules or the transfer order is found to have been passed on malafides. Even for personal grievance, the Court does not interfere as it is the exclusive domain of the employer to consider the personal grievances of the employee. It is the ultimate decision of the employer as to where and for what period the services of an employee are required. The employee does not have a right to choose his place of posting. Transfer is an incidence of service and no interference is generally required. Transfer policy does not create any legal right in favour of the employee and, thus, the terms thereof cannot be enforced through writ jurisdiction. 15. It is a trite law that transfer/posting is an incidence of service. The Court should not interfere with the transfer/posting order unless there is malice, infringement of statutory rules and regulations. The employees may be posted anywhere at the instance of the employer in public interest and administrative exigency. Further, it is for the Government to post another person if any vacancy arises on account of transfer/posting of an employee. 16. In view of the aforesaid analysis, the order of transfer is neither hit by Section 28A of the R.P. Act, 1951 nor it is arbitrary and illegal. 17. Further, it is for the Government to post another person if any vacancy arises on account of transfer/posting of an employee. 16. In view of the aforesaid analysis, the order of transfer is neither hit by Section 28A of the R.P. Act, 1951 nor it is arbitrary and illegal. 17. As a fallout and in consequence of aforesaid discussion, the writ petition deserves to be and is hereby dismissed. No order as to costs.