Madhya Pradesh High Court
Kalyan Singh Jatav vs The State Of Madhya Pradesh on 27 August, 2019
Equivalent citations: AIRONLINE 2019 MP 1864
Author: Vishal Mishra
Bench: Vishal Mishra
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No.8130/2019
(Kalyan Singh Jatav vs. State of M.P.)
Gwalior, Dated : 27.08.2019
Shri Jitesh Sharma, Advocate for the petitioner.
Shri Anand Bhardwaj, Government Advocate for
respondent/State.
Counsel for the rival parties are heard on the question of admission.
Present petition under Article 226 of Constitution assails the order of transfer (Annexure P-1) of the petitioner who holds the post of Patwari has been transferred from Patwari Halka No.25, Himona- Khurd, Tehsil Morena to Patwari Halka No.05, Adhannpur, Tehsil Porsa, District Morena.
Learned counsel for the petitioner alleged that impugned transfer order has been issued after 10.03.2019 (coming into effect of model code of conduct issued by the Election Commission of India in respect of Parliamentary Election, 2019) but has been back dated and shown to be issued on 10.03.2019 to deny the legitimate immunity which was otherwise available to the petitioner under the Code of Conduct. Certain other peripheral grounds have also been raised though feebly by the counsel, inasmuch as, the transfer made during ban period.
Further contention raised by counsel for petitioner by relying upon an interim order dated 29.03.2019 in W.P.No.6032/2019 (filed by similarly placed Patwari assailing the same impugned order as impugned herein) it is submitted that by the said interim order dated 29.03.2019, similarly placed patwari-Arvind Sikarwar has been 2 THE HIGH COURT OF MADHYA PRADESH W.P. No.8130/2019 (Kalyan Singh Jatav vs. State of M.P.) benefited by grant of stay of his transfer order on prima facie satisfaction of the ground that the impugned order is backdated.
Taking up the first ground of immunity arising from the code of conduct it is pertinent to note that the code of conduct is issued by the way of notification by the Election Commission of India by invoking Sec.28-A of Representation of Peoples Act.1951 ("Act, 1951" for brevity) which is reproduced below for ready reference and convenience:-
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 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.
Bare reading of aforesaid provision reveals that no sooner the notification u/S.28-A of Act, 1951 is issued by the Election Commission of India all employees and officers designated for conduct of elections come within the control, superintendence and discipline of the Commission which inter alia implies that such employees/officers can be shifted/transferred by its employer only after seeking prior concurrence of the Election Commission and not otherwise.
Learned counsel for the petitioner is enable to demonstrate that the petitioner is designated for conduct of election and therefore, the 3 THE HIGH COURT OF MADHYA PRADESH W.P. No.8130/2019 (Kalyan Singh Jatav vs. State of M.P.) said immunity is not available to the petitioner and thus this ground raised holds no water.
Since it is already held (supra) that the petitioner has not been assigned any election duty, the factum of the impugned transfer being backdated or not is of no avail thereby rendering the interim order dated 29.03.2019 in W.P.No.6032/2019 inconsequential for the petitioner.
As regards the transfer made during ban period and without prior approval of the minister-in-charge, the same are of no avail to the petitioner since these grounds relate to breach of policy of transfer which are mere guidelines, and which do not bestow the transferred employee with any justiciable right to approach the Court.
Moreso, the petitioner has failed to establish any of the three legitimate grounds on which an order of transfer can successfully be challenged i.e. proven malafide, violation of any constitutional/statutory provision and the transfer adversely affected any service conditions of the transferred employee.
None of the aforesaid grounds are made out in this petition which accordingly stands dismissed. No order as to cost.
(Vishal Mishra) Judge van VANDANA VERMA 2019.09.04 12:14:17 +05'00'