Madras High Court
State Of Tamil Nadu vs The Election Commission Of India ... on 19 April, 1995
Equivalent citations: (1995)2MLJ6
Author: Shivaraj Patil
Bench: Shivaraj Patil
ORDER Shivaraj Patil, J.
1. These two writ petitions are by the State of Tamil Nadu represented by the Chief Secretary to the Government of Tamil Nadu, Fort St. George, Madras. Since the two impugned orders in these two writ petitions are inter-related, I consider it convenient and appropriate to dispose of both the writ petitions by this common order.
2. In W.P. No. 17239 of 1994 the prayer is to issue a writ of certiorari to quash the order No. 434/I/ID.94 dated 30.6.1994 of the respondent. In W.P. No. 17238 of 1994 the order No. 494/1/94MCS/724, dated 3.8.1994 of the respondent is sought to be quashed.
3. The facts to the extent they are relevant and necessary for the disposal of these writ petitions are the following:
The respondent who is vested with the power of superintendence, direction and control over the preparation of electoral rolls and the conduct of elections had issued directions to the Chief Secretaries, of the States in India, directing preparation and distribution of identity cards to all eligible electors/voters on or before 30.11.1994. The respondent has also issued the impugned circular dated 30.6.1994 prohibiting transfer of officers connected with the scheme of preparation and distribution of photo identity cards with effect from 1.7.1994 till the said work is completed.
4. The petitioner states that the said circular dated 30.6.1994 imposing a complete ban on transfer of all officers connected with the scheme of identity cards with effect from 1.7.1994 till the said work of preparation and distribution of identity cards is completed, is totally without jurisdiction besides being arbitrary and unreasonable. This apart the said direction of the respondent is beyond its competence and is not traceable to either the provisions of the Constitution or any statute. This direction squarely and wholly interferes with and interdicts the executive power of the State in addition to creating serious administrative problems. Because of the said direction the State has been put to serious administrative problems.
5. In the impugned circular it is stated that in the interest of smooth and timely issue of identity cards to the electors and to ensure the completion of the work by the stipulated time there shall be a complete ban on transfer of officers connected with the work of issuing identity cards with effect from 1.7.1994 till its completion. It has been repeatedly brought to the notice of the respondent and the Government of India that the task of taking up and completion of the preparation and distribution of identity cards would make it practically impossible for any Government to complete the work within the stipulated time having regard to the magnitude of the problem and the cost involved. If the ban on transfer of Officers would be continued till the completion of the work of preparation and distribution of identity cards it would completely immobilise the State Government and adversely affect the executive functioning of the administration.
6. It is submitted that to place restrictions on the State Government in the matter of personnel management on the ground that it would distrupt the electoral process is stretching the argument and rationale to illogical extremes and indeed it interferes with the sovereign right of the State Government to determine exigencies of public interest and running the day-to-day administration of the State. The officers dealing with the preparation and distribution of identity cards who are designated as District Election Officers or Electoral Registration Officers, are public servants who have a number of other functions and responsibilities such as the administration of law and order, running the development administration in the District, or attending to municipal or local body functions. The performance of these duties in the public interest would often override considerations of performance of functions related to electoral reform like the preparation of photo identity cards which is only one of the many functions being performed by them. The ban on postings and transfer of officers is therefore a severe and arbitrary constraint on the sovereign right of the State to determine the public interest and to make arrangement to run the affairs of the State Government, their placement of its Officers for which the Election Commission has no jurisdiction.
7. The following categories of Officers would be covered by the ban in which cases postings and transfers cannot be given effect to:
i. District Election Officers Collectors in Districts (Except Madras),
Commissioner, Corporation of Madras in City.
ii. Electoral Registration Revenue Officer, Corporation Officers of
Madras, Revenue Divisional Officers/Sub
Collectors, Asst. Collectors, Commissioners,
Corporation of Madurai and Coimbatore,
Municipal Commissioners, Salem and
Tiruchirapalli Municipalities.
iii. Assistant Electoral Tahsildar (Elections), Asst.
Registration Revenue Officer Corporation of
Officers Madras, Taluk Tahsildars, All Municipal
Commissioners (except Salem and
Tiruchirapalli Municipalities).
8. The posting and transfers of Officers in the District and sub-divisions are made on various grounds viz., either to fill up vacancies consequent on the retirement of officers on superannuation or on complaints received, or in view of completion of a considerable period in that post, or on promotion to fill up the vacant post. Therefore, a complete ban on transfer will adversely affect the effective functioning of the administration, Since the State Government's ability to determine the public interest in the matters other than the election work will be put to severe contraints by such a curb or ban on transfer of Officers. Transfers are to be made under administrative exigencies or various types. On such occasions it would not be possible for the State Government to seek prior concurrence of the Election Commission or to wait for its clearance in every case as suggested by the respondent. To illustrate, an officer selected for training abroad under the Colombo Plan in May, 1993 had to be relieved to undergo training but the ban would apply to his relief since he is a District Election Officer, Assistant Collectors on completion of the training have to be given their first postings to the Revenue divisions which cannot be dragged on till the completion of issue of identity cards. Similarly posts which fall vacant consequent on the retirement of the incumbents would have to be filled up immediately. Further as a matter of policy Revenue Divisional Officers and Tahsildars have to work necessarily in Regular Divisional charges for a period of one year and they are not retained in the posts beyond the period of one year to enable all the Officers to work in the regular divisions/taluks. It is stated that the process of issue of identity cards is a time consuming process and the State Government would certainly ensure that the transfers effected would in no way affect the work relating to the issue of identity cards entrusted by the Election Commission. Hence, the writ petition is filed seeking for quashing the impugned directions contained in the circular dated 30.6.1994 placing total ban on transfer of all Officers connected with the work of preparation and distribution of identity cards with effect from 1.7.1994 till its completion on the grounds that,
(a) the impugned circular issued by the respondent is wholly without jurisdiction. It is beyond the competence and power of the respondent vested under the Constitution or any other provision of law;
(b) Under Article 162 of the Constitution the Executive power of the State is co-extensive with the legislature. Entry 41 of List II of the Seventh Schedule to the Constitution read with proviso to Article 309 of the Constitution relate to State Public Services, which confer exclusive jurisdiction on the State to enact laws and to pass executive orders in respect of State Services. Hence, the impugned directions imposing ban on transfer constitutes a serious inroad into the powers of the State Executive;
(c) The scheme of preparation and issue of identity cards does not require particular officers of the State, and their continuance in the same position is not a sine quo non for the preparation and supply of identity cards. Therefore imposing ban on transfer of all such Officers till the said work is completed is wholly irrational and arbitrary having no nexus with the object sought to be achieved.
9. The order No. 494/1/94/MCS/724 dated 3.8.1994 of the respondent impugned in W.P. No. 17238 of 1994 is a consequential order pursuant to the orders issued earlier by the respondent on the same subject relating to ban on transfers, in which besides other things, it is stated that it is necessary to obtain the concurrence of the respondent before any officer connected with the said operation is transferred. Since the facts and grounds stated in this writ petition are identical to the facts stated and grounds raised in W.P. No. 17293 of 1994 it is not necessary to repeat them.
10. The Secretary of the respondent Commission has filed a common counter affidavit in these writ petitions. In the said counter he has stated about the provisions of Article 324(1) and (6) of the Constitution and Section 13 (cc) of the Representation of the People's Act, 1950, hereinafter referred to as 'the Act'. He submits that in the conference of Chief Electoral Officers held on 6th and 7th December, 1990 the Chief Electoral Officers expressed great satisfaction over the fact that no officer connected with the election work would be transferred without their knowledge during the election time. The Chief Electoral Officers were of the opinion that the ban on transfer of officers during election time has greatly helped in achieving the object of organising smooth, free and fair elections. They have further suggested that this provision should be made operative at other times also so as to ensure minimum dislocation of work due to frequent transfer of officers connected with the elections.
11. The commission considered the said suggestion as very useful one and wrote to all the Chief Secretaries by its communication dated 21.2.1991 to consider whether it would be possible to act on the said suggestion. The respondent further addressed a communication to the Chief Electoral Officers, Tamil Nadu on 14.3.1991 bringing to their notice the provisions of Section 13(cc) of the Act and stating that the persons engaged in the work of revision of electoral rolls being on deputation with the Commission during that period, they cannot be transferred in a routine and casual manner, after the commencement of the work of revision without the prior approval of the Election Commission. The Chief Electoral Officer, Tamil Nadu who is also the Secretary to the Government of Tamil Nadu in his letter dated 13.7.1992 stated that it would be desirable that the concurrence of the Chief Electoral Officer be obtained for making transfer of Officers and Staff in the Office of the Chief Electoral Officer even during non-revision and non-election periods. He suggested that the instructions to this effect be issued.
12. The impugned notification dated 3.8.1994 issued by the respondent to all the Chief Secretaries clearly refers to the earlier communications. In view of the fact that intensive revision of electoral rolls has been ordered by the Election Commission in the State of Tamil Nadu with a view to ensuring smooth operation of the work, the Election Commission ordered that no officer connected with the said work can be transferred without the concurrence of the Election Commission. Similarly by the communication dated 30.6.1994, with a view to ensuring smooth and timely issue of identity cards, ban on transfer of officials was made. A communication was received from the Chief Secretary, Government of Tamil Nadu dated 14.7.1994 requesting the respondent to reconsider the ban orders contained the communication dated 30.6.1994. The respondent on 30.8.1994 informed the petitioner that the ban imposed by it on the transfer of Officers connected with the preparation and issue of identity cards will continue and the Commission will consider relaxation in specific cases on merits if the matter is referred to the Commission with full details and justification for such transfers, and that orders will be passed with greatest expedition.
13. It is the case of the respondent that it is not correct to say that the ban orders are without jurisdiction;
they are neither arbitrary nor unreasonable, and the same have been issued with a view to ensuring smooth completion of the revision of electoral rolls and issue of identity cards to the electors, It is also stated that the ban orders have been issued by the respondent by the virtue of its powers under Article 324(1) and (6) read with Section 13-CC of the Act which provides that the Officers and staff employed in connection with the preparation, revision and correction of the electoral rolls shall be deemed to be on deputation to the Election Commission during the said period. Hence the control, superintendence and discipline of any deputationist by the authority accepting the staff on deputation includes the power to prohibit their transfers during the period of deputation. Therefore, the Commission has such power and legal basis. The power of the Commission is upheld by the Supreme Court in the case of Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi . stating that Article 324 is wide one and there is no limitation under Article 324(1) from which it can be held that where the law made under Article 327 or the relevant rules made thereunder do not provide for a mechanism of dealing with certain extra-ordinary situation,, the hands pf the Election Commission are tied and it cannot independently decide for itself what to do in a matter relating to an election.
14. The respondent has denied that the ban orders would completely immobilise the State Government and will adversely affect the effective functioning of the administration. If the petitioner wants to transfer any Officer on genuine grounds it can always represent to the respondent seeking its prior approval. In short, it is submitted that the issuing of the impugned circulars was within the competence and jurisdiction of the respondent; the impugned circulars are neither arbitrary nor unreasonable; they are issued to ensure only the smooth completion of the revision and correction of the electoral rolls and issue of identity cards to electors within the specified time. It is stated that the difficulties expressed by the petitioner in the writ petitions are purely imaginary, and indicates the unwillingness of the State Government to approach the Election Commission for seeking prior approval for transfer of officials performing election related work only shows that the petitioner has no real grievance in the eye of law. Therefore the respondent has prayed for dismissal of the writ petitions.
15. The petitioner has filed a reply affidavit referring to the provisions of Article 324 of the Constitution and Section 13-CC of the Act, and reiterated the averments already made in the affidavits filed in support of the writ petitions, while adding that the Election Commission has recently decided that the electoral rolls be hereafter revised intensively every alternative year. Since the process of intensive revision would spread over six to eight months in every alternative year, it is incorrect to state that the ban imposed is for a limited period. Further by-elections are also held in the middle and the officers connected with these by-elections are also covered under the ban orders. In view of the same it would be administratively difficult to implement the ban orders of the respondent continuously.
16. Shri R. Krishnamurthi, the learned Advocate General appearing for the petitioner, contended that, i. The respondent has no power to impose ban on transfer of all the Officers of the State Government either under Article 324 of the Constitution or under any of the provisions of the Representation of People's Act;
ii. Although under Article 324(1) the powers of the respondent are held to be wide, those powers are confined to the functions of the Commission and the same cannot extend or impinge upon the functions of other constitutional or statutory authorities. Thus the Election Commission cannot seek to exercise any power which would impinge upon the powers of the State Government to transfer its own officers;
iii. Section 13-CC of the Representation of the People's Act, 1950 is limited in its operation and is confined to the Officers of the State Government by designation and not by names, and that too in respect of the functions of the Election Commission. Therefore the said provision cannot be said to empower the respondent to pass the impugned communications and iv. The exercise of power under Article 324(1) or any other provision should have nexus to the object of the function of the respondent. Any exercise which is either irrational or arbitrary or which has no nexus to the said object would have to be struck down as being violative of Article 14, apart from being ultra vires of Article 324 itself. In the instant case issue of photo identity cards as well as the revision of electoral rolls is not imminent nor does it involve the association of particular officers. In the circumstances the total ban on transfer of all officers is wholly irrational and has no nexus to the object and is therefore liable to be struck down.
17. Shri G. Rajagopalan, learned Counsel representing the respondent urged, i. The Election Commission under Article 324(1) and (6) has wide powers to issue orders relating to the conduct of elections and preparation of electoral rolls;
ii. Section 13-CC of the Representation of the People's Act, 1950 added in 1989 by Act 1 of 1989 clearly shows that all the Officers engaged in preparation of electoral rolls are treated to be deputed to the Election Commission and they are subjected to the superintendence and control of the Election Commission. As such the impugned communications are sustainable and justified, having regard to Article 324(1) of the Constitution, Section 13-CC of the Representation of the People's Act, 1950 and Section 28-A of the Representation of the People's Act, 1951;
iii. Unlike in Arts. 162, 309 and 327. Article 324 is not subjected to other provisions of the Constitution. Hence, the Election Commission has wide powers under Article 324 as the powers under Article 162 are subjected to Article 324;
iv. Under the impugned communications there is no total ban on transfers. The ban relates only to officers connected with the preparation of photo identity cards and revision of electoral rolls;
v. No transfer can be made without the consultation of the Election Commission as can be seen from Section 13-AA of the Representation of the People's Act, 1950; and vi. The word 'control' has wide connotation which includes the power of transfer as well.
18. Both the learned Counsel have placed reliance on few authorities. I will refer to them hereafter.
19. In the light of the submissions made by the learned Counsel for the parties relating to rival contentions, the only and substantial question that arises for consideration is whether the Election Commission, exercising power under Article 324 of the Constitution read with Section 13-CC of the Representation of the People's Act, 1950, is empowered to issue orders banning the State Government from transferring its officers from the date of commencing the preparation of issue of photo identity cards till completion of its work,
20. Having regard to the importance and vital question that has arisen for consideration, I have very carefully considered the submissions made by the learned Counsel for the parties on the facts and circumstances of the case, in the light of various decisions of the Apex Court as well as the other High Courts.
21. Article 324(1) of the Constitution reads thus:
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 the Election Commission.
Thus it is clear, the power of superintendence 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 elections to the offices of President and Vice President vest in the Election Commission. Under Article 324(6) the President or the Governor of a State, when requested by the Election Commission, shall make available to it such staff as may be necessary for the discharge of the functions conferred on the Election Commission by Clause (1) of Article 324. Article 327 subject to the provisions of the Constitution, provides for making law by Parliament with respect to all matters relating to, or in connection with, election to either house of Parliament or of the legislature of a State including the preparation of electoral rolls, delimitation of constituencies, and all other matters necessary for securing the due constitution of such House or Houses.
22. Section 13-CC of the Representation of the People's Act, 1950 as amended by Act No. 1 of 1989 reads thus:
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.
From the said provision it is evident that the Officers mentioned in Part II-A of the Act and other officers and staff employed in connection with the preparation, revision and correction of the electoral rolls and 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 they shall be subject to the control, superintendence and discipline of the Election Commission during that period.
23. Section 28-A of the Representation of the People's Act, 1951 as amended by Act No. 1 of 1989 reads thus:
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 the 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.
This provision indicates that all the officers appointed under the relevant part and any police officer designated for the time being by the State Government for the conduct of any election are deemed to be on deputation to the Election Commission from the date of the notification calling for such election till the date of the declaration of results of such election, and are subjected to the control, superintendence and discipline of the Election Commission.
24. Under Sections 13-A, 13-AA, 13-B and 13-C of the Representation of the People's Act, 1950, the officers of the State Government concerned shall be designated or nominated by the Election Commission as Chief Electoral Officers, District Election Officers, Electoral Registration Officer and Assistant Electoral Registration Officer, in consultation with the concerned State Government.
25. Under Article 162 of the Constitution subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws, provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. The executive power of State is co-extensive with the Legislative power of the State. But no executive action can interfere with the rights of a citizen unless supported by an existing statutory provision.
26. Entry 41 of the Seventh Schedule relates to "State Public Services; State Public Service Commission", in List II - State List. From the said entry in List II read with Article 162 of the Constitution it is clear that the appointments, transfers and other related matters to State Public Services is within the domain of the State Government. The State Public Services and Public Service Commission directly and specifically are provided in the State List.
27. Article 324 deals with the powers of the Election Commission in regard to specific subject of conduct of elections to Parliament and Legislatures of States and election to the offices of the President and Vice-President including the preparation of electoral rolls. The power of superintendence, direction and control of elections are vested with the Election Commission under Article 324(1). The powers under Article 324(1) are wide so far as they relate to preparation of electoral rolls and conduct of elections in the matter of superintendence, direction and control. All such powers incidental to, connected with, and necessary for preparation of electoral rolls and conduct of elections are available to the Election Commission. Any communication, order or action of the Election Commission must have nexus in relation to the matters stated under Article 324(1) of the Constitution.
28. Article 162 deals with the executive power of the State. Article 324(1) deals with the power of superintendence, direction and control of the Election Commission in regard to the preparation of electoral rolls and conduct of elections. I do not find any conflict between the two. Both occupy different fields. Assuming, in examining the correctness of the impugned orders/communications, difficulty arises, it is appropriate to resolve the difficulty by adopting the harmonious interpretation which will advance the objects of both the Articles. In my view, looking to Article 324(6) and Sections 13-A, 13-AA, 13-B and 13-C, the Election Commission has power to require the services of officers and staff from any State Government concerned, for the purpose, of preparation of electoral rolls and conduct of elections. In order to see that such officers and staff carry out the work entrusted to them properly puncutally and timely, in order to conduct the elections freely and smoothly and fairly the Election Commission should have power of superintendence, direction and control including the disciplinary power.
29. On a reading of Section 13-CC of the Representation of the People's Act, 1950 and Section 28-A of the Representation of the People's Act, 1951, it is clear that during the period in which the officers and staff are engaged in the work of preparation of electoral rolls and conduct of elections they are deemed to be on deputation even for the purpose of discipline giving sufficient powers to the Election Commission to supervise, control and direct them. The Officers are to be designated or nominated as can be seen from Sections 13-A, 13-AA, 13-B and 13-C as Chief Electoral Officers, District Election Officers, Electoral Registration Officer, and Assistant Electoral Registration Officer, in consultation with the State Government, and not by name. Whoever may be the officers during the relevent period, they are subject to the jurisdiction of the Election Commission so far as they are engaged in the work of preparation of electoral rolls or conduct of elections either under Section 13-CC of the Representation of the People Act, 1950 or Section 28-A of the Representation of the People Act, 1951.
30. Preparation of electoral rolls and issue of photo identity cards may take considerable time. Besides there may be revision of electoral rolls, or intensive revision of electoral rolls or preparation of electoral rolls for by-elections. If the Officers are once designated or nominated and are entrusted with the work of preparation of electoral rolls, till such work is over or the work is continuous for a longer period, it cannot be said that the State Government cannot transfer them. All that the Election Commission can insist is that the work of preparation of electoral rolls or issue of photo identity cards should not be hampered or handicapped by transfer of officers. It can also insist for providing a substitute officer before transferring officers already working so that the work does not suffer. More so when the the issue of photo identity cards or preparation of electoral rolls cannot be said to involve any technical or special skill and that the officers are specially trained for it.
31. The Officers so designated or nominated under Section 13 viz., Collectors, District Revenue Officers, Tahsildars, Commissioners of Corporation etc., are not the officers who exclusively have the only duty of preparation of electoral rolls. They have various other functions as the Officers of the State. Transfer and posting may be necessitated under various circumstances and by the demand of exigencies of time. Some officers may retire, some of the officers may resign, some of the officers may have to be transferred in the public interest or to be compulsorily retired or to be sent for training, or a specific posting has to be given for some period before they are given other postings, or independent charge at a higher level.
32. As can be seen from the notifications, the officers are designated or nominated by the Election Commission for the preparation of electoral rolls and conduct of elections but not by names. Looking to the languages used in Sections 13-CC and 28-A it is clear that the officers are deemed to be deputed during the period for which they are engaged in the preparation of electoral rolls. Even if one officer who was designated is transferred the other officer of the same designation of a respective District or Taluk may continue to work in the preparation of electoral rolls. The power of superintendence, control, direction and discipline is available to the Election Commission with reference to the officers concerned during the period in which they were discharging the functions of the officers in connection with the preparation of electoral rolls.
33. The State Government may have several difficulties and good reasons, and in the public interest they may have to order for transfer and posting of officers. I do not think that the Election Commission can injunct the State Government from making transfer and postings, but certainly it has power of requisitioning the services of officers for the purpose of preparation of electoral rolls and conduct of elections. Not to transfer officers during the period of election relating to the conduct of elections, i.e., from the date of issuing the notification calling for elections and till the date of declaration of results, may be prudent and understandable as it is required for smooth and efficient conduct of elections, but there is no such good reason for insisting that the same officer should continue during the entire period of preparation and revision of electoral rolls and issue of identity cards, which may take longer time or may be a continuous process. In the preparation of electoral rolls, as can be seen from the Notification nominating and designating various officers, large number of officers and staff are involved. If any officer is to be transferred, prior consultation and approval of the Election Commission is necessary every time, it may lead to difficulties and practical problems. Sometimes transfers are to be effected, postings are to be given without any loss of time, in particular circumstances where law and order is to be maintained. Though there may not be a total ban on transfer and postings under the impugned communications, but large number of officers, practically all the Collectors; District Revenue Officers and Tahsildars are involved. Thus though not a total ban, there is a substantial ban on transfers.
34. The Supreme Court in the case of Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi , in paragraph 113 has stated thus:
Article 324(1) vests in the Election Commission 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 the President and Vice President held under the Constitution. Article 324(1) is thus couched is wide terms. Power in any democratic set-up, as is the pattern of our polity, is to be exercised in accordance with law. That is why Arts. 327 and 328 provide for making of provisions with respect to all matters relating to or in connection with elections for the Union Legislatures and for the State Legislatures respectively. When appropriate laws are made under Article 327 by Parliament as well as under Article 328 by the State Legislatures, the Commission has to act in conformity with those laws and the other legal provisions made thereunder. Even so, both Arts. 327 and 328 are subject to the provisions of the Constitution which include Article 324 and Article 329. Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice President is vested under Article 324(1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Commission in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen, or . anticipated with precision. That is why there is no hedging in Article 324. The commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules. That seems to be the raison d'etre for the opening clause in Arts. 327 and 328 which leaves the exercise of powers under Article 334 operative and effective when it is reasonably called for in a vacuous area. There is, however, no doubt whatsoever that the Election Commission will have to conform to the existing laws and rides in exercising its powers and performing its manifold duties for the conduct of free and fair elections.
[Italics is mine] In the same judgment the Supreme Court in paragraph 115 went on to say, The commission is, therefore, entitled to exercise certain powers under Article 324 itself on its own right, in an area not covered by the Acts and the rules. Whether the power is exercised in an arbitrary or capricious manner is a completely different question.
35. Dealing with the argument that the Election Commission being a creature of the Constitution itself, its plenary powers flowing directly from Article 324 will prevail over any Act passed by the Parliament or rules made thereunder, the Supreme Court in the case of A.C. Jose v. Sivan Pillai :
This is a very attractive argument but on a closer scrutiny and deeper deliberation on this aspect of the matter, it is not possible to read into Article 324 such a wide and uncanalised power, which is entrusted to the Commission as Mr. Jethmalani would have us believe. Part XV of the Constitution contains Arts. 324 to 328 which relate to the manner in which elections are to be held, the rights of persons who are entitled to vote, preparation of electoral rolls, delimitation of constituencies, etc., but this is merely the storehouse of the powers and the actual exercise of these powers is left to Parliament under Arts. 325 to 329. In other words, Article 324 has to be read in harmony with, and not in isolation of Arts. 326 to 329.
[Italics supplied] In the same judgment the Supreme Court has observed in paragraph 7 that, Another golden rule laid down by this Court on the interpretation of statutes is that we should so interpret the language of a Statute as to suppress the mischief and advance the object. It is true that Article 324 does authorise the commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections to Parliament and State legislatures but then the Article has to be read harmoniously with the Articles that follow and the powers that are given to the Legislatures under entry No. 72 in the Union List and entry No. 37 of the State List of the Seventh Schedule to the Constitution. The Commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to Parliament and the State legislatures. By no standards can it be said that the Commission is a third Chamber in the legislative process within the scheme of the Constitution. Merely being a creature of the Constitution will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures.
[Italics is mine]
36. Referring to the debates in the Constituent Assembly making the Election Commission an independent body, the Supreme Court in the same judgment proceeded to say that the intention of the founding fathers of our Constitution was to make the Commission a separate and independent body so that the election machinery may be outside the control of the Executive Government, but the intention was not to make the commission an apex body in respect of matters relating to elections, conferring on it the legislative powers ignoring the Parliament altogether.
37. The other argument in the said case was that Article 324 was a code in itself and if so construed it gives full powers and authority to the commission to give any direction in connection with the conduct of elections, and if this interpretation is not accepted then Arts. 325 to 329 would amount to defeating the very object which was sought to be achieved under Article 324. In this regard support was sought to be derived from the opening words in Article 327 to the effect that "subject to the provisions of this Constitution", and the absence of any such rider in Article 324. But this argument was not accepted by the Supreme Court.
38. In paragraph 17 of the same judgment it is stated that no one is an imperium in imperio in our constitutional order. The Commissioner cannot defy the law armed by Article 324. Likewise his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system.
39. In Kanniya Lal Omar v. R.K. Trivedi , the Supreme Court has held in paragraph 16 thus:
Even if for any reason, it is held that any of the provisions contained in the symbols order are not traceable to the Act or the Rules, the power of the Commission under Article 324(1) of the Constitution which is plenary in character can encompass all such provisions. Article 324 of the Constitution operates in areas left unoccupied by legislation and the words "superintendence, direction and control' as well as 'conduct' of all elections are the broadest terms which would include the power to make all such provisions.
40. Full Bench of Patna High Court in the case of Kanhaiya Prasad Sinha v. Union of India , dealing with a case in which the petitioner had challenged the order of his transfer on the ground that it was in violation of the direction issued by the Election Commission, has taken the view that the question as to whether the directions issued under Article 324 of the Constitution are mandatory or directory is not very material in the matter of providing necessary officers and staff for conducting free and fair election because even if they are directory they cannot be easily ignored and they have to be respected. In case the directions so issued by the Commissioner are not respected, then in appropriate cases, the court may examine the same and pass appropriate orders. But that is a matter purely between the Commission and the concerned State. It does not give handle to a person to challenge his transfer contending that it was made in violation of the directions issued by the Commission.
41. The High Court of Bombay while dealing with closure of wine shops during election period and the powers of the Election Commission in that regard to impose ban on the sale of liquor, in Maharashtra Wine Merchants Association v. The State of Maharashtra , has held that Article 324 does not enable the Election Commission to over-ride any of the legislations or statutory rules having force of legislation in any of the States.
42. The High Court of Karnataka, in the case of Dasappa and Brothers, Bangalore v. Election Commission, New Delhi A.I.R. 1992 Karn. 230, dealing with the directions issued by the Election Commission of India to the State Governments respecting the ban on sale of liquor, refused to interfere with the ban order under Article 226 of the Constitution, stating that what precautionary measures are required to be taken for ensuring free and fair election are matters which should be left to discretion of the Election Commission and its subjective satisfaction.
43. A Division Bench of this Court in the case of Chief Engineer (Personnel). T.N.E.B., Madras v. K. Raman (1985) 1 L.L.J. 164, in regard to the court exercising powers under Article 226 of the Constitution relating to cases of transfers, in paragraph 9, has stated thus:
One thing must be stated at the outset. This Court exercising powers under Article 226 of the Constitution is not exercising administrative supervision of the affairs of the Electricity Board and the Board knows how to administer its affairs. It cannot be gainsaid that transfer is an incidence of service. As the learned Judge himself has rightly put it, if it is a part of the conditions of service, it is not normally open to judicial review. It is equally true that if an order of transfer is maintained with mala fides or violative of certain well accepted norms or penal in nature, the court can always find out whether such an order of transfer is mala fide, passed with ulterior motive or intended to achieve an object circumventing disciplinary proceedings.
44. In the light of the above decisions, it is clear that the Election Commission can issue directions or pass orders in all the matters relating to conduct of election and preparation of electoral rolls subject to the laws made by Parliament or legislatures, and such powers can be exercised by the Election Commission in an area not occupied by other statutory provisions. Under Article 162 of the Constitution the executive powers of the State are exercised. The State service is one of the subjects falling in the State list at Entry 41 in List No. II of the Constitution. This being the position the power of appointment, transfer and other matters relating to service vests with the State Government. Article 324, as held by the Supreme Court in the aforementioned decisions, cannot be taken as conferring the plenary powers on the Election Commission, and the provisions of Arts. 324 to 329 of the Constitution must be read harmoniously so as to suppress the mischiefs and advance the object sought to be achieved under the said provisions. The President or the Governors as the case may be, have to necessarily provide the required staff and officers i.e., machinery for conducting of free and fair elections and preparation of electoral rolls as may be required by the Election Commission.
45. Under Article 324 read with the relevant provisions under the Representation of the People's Acts, 1950 and 1951, the Election Commission has power to superintend, direct and control and discipline such officers and staff as they are deemed to be on deputation during the relevant period. The Officers and staff provided for the preparation of electoral rolls and issue of photo identity cards are officers designated and not officers named. The designated officers happen to the officers holding different posts in the State service such as Collectors, District Revenue Officers, Revenue Divisional Officers/Sub Collectors, Tahsildar, Municipal Commissioners etc., They have several functions to discharge, one of the functions may be preparation of electoral rolls. The Election Commission has certainly powers to superintend and control such officers for the purpose of carrying out the conduct of elections, preparation of electoral rolls and issue of photo identity cards. It is well within its powers to insist that the required number of Officers and Staff must be made available, and even if such officers and staff are to be transferred they should not be transferred without providing a substitute so that the work of preparation of electoral rolls and issue of photo identity cards is not hampered or handicapped in any way, to ensure holding of free and fair elections smoothly. But the commission insisting that all the large number of officers holding various ranks and positions and the staff engaged in preparation of electoral rolls cannot be transferred at all without the prior permission/approval of the Election Commission, in my opinion, is going beyond the powers available to the Election Commission. As stated above already, transfer is an incident of service, and the State Government has the power to deal with its servants in the matter of transfer and posting. There may be several grounds and reasons and certain exigencies may also demand for immediate transfers. Seeking prior permission of the Election Commission before any officer involved in the preparation of electoral rolls is transferred results in difficulties and even it may affect the running of the administration in the State smoothly and properly. Sometimes it may affect the Law and Order situation if a particular officer or officers are not transferred or posted.
46. Under these circumstances, the impugned orders so far as they impose a ban on transfer of officers connected with the preparation of electoral rolls and issue of photo identity cards, in my opinion, cannot be sustained. It is open to the commission to insist for posting of officers and staff before an officer or staff is transferred, to keep the time bound work of preparation of electoral rolls and issue of photo identity cards going on and to ensure the completion of the work within the time. It is clear that the officers and staff whenever they are engaged in the preparation of electoral rolls or issue of photo identity cards, are amenable to the disciplinary jurisdiction of the Election Commission. Being under the superintendence, control and direction of the Election Commission, if any officer or member of the staff has failed to act or disobeyed the orders, or commits any default, he is liable for omissions and commissions during the period in which he was concerned with the work. Merely because such an officer is transferred it cannot be said that he is absolved of his acts of omission and commission. Appropriate action can always be taken.
47. Thus, in the result, for the reasons stated above, I pass the following order:
i. The writ petitions are partly allowed:
ii. The impugned orders/letters dated 30.6.1994 and 3.8.1994 to the extent of imposing ban and restriction on transfers only are quashed. It is open to the Election Commission to issue necessary directions and insist to provide officers and staff so as to complete the work of preparation of electoral rolls and issue of photo identity cards; and iii. There shall be no order as to costs.