Karnataka High Court
Election Commission Of India vs The State Of Karnataka on 16 April, 2013
Bench: N.Kumar, B.Manohar
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 16th day of April, 2013
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MR. JUSTICE B. MANOHAR
W.P.Nos.17123-124 of 2013, 17295-297of 2013
& 17298-299 of 2013 (S-CAT)
BETWEEN:
1. Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi 100 001,
Rep by CEO.
2. The Chief Electoral Officer
For the State of Karnataka,
Cubbon Park,
Bangalore - 560 001 ...Petitioners
(By Sri G.Rajagopal, Senior Counsel for
Sri Krishna S Dixit, Adv.,)
AND:
1. The State of Karnataka,
Represented by its
Chief Secretary to Government
of Karnataka,
2
Vidhana Soudha,
Bangalore - 560 001
2. The Principal Secretary,
Department of Personnel &
Administrative Reforms,
Vidhana Soudha,
Bangalore - 560 001.
3. The State of Karnataka,
Represented by its Under Secretary
To the Government of Karnataka,
DP & AR (Services-I),
Vidhana Soudha,
Bangalore - 560 001.
4. Mr. Harsha Gupta IAS,
Now posted as Deputy Commissioner,
Dakshina Kannada,
Mangalore,
5. Mr. Naveen R Singh IAS,
Now posted as Deputy Commissioner,
Ramanagar District, Ramanagar.
6. Mr. Munish Moudgil IAS,
Now posted as Deputy Commissioner,
Belgaum District, Belgaum.
7. Mr. Ajai Nagabhushan IAS,
Now posted as Deputy Commissioner,
Mandya District, Mandya.
8. Mrs. C Shikha IAS,
Now posted as Deputy Commissioner,
Mysore District, Mysore.
9. Mr. P Rajendra Cholan IAS,
Now posted as Deputy Commissioner,
Yadgir District, Yadgir.
3
10. Mr. Ujwal Ghosh IAS,
Now posted as Deputy Commissioner,
Raichur District, Raichur.
11. Sri V. Srirama Reddy, IAS,
S/o Late Venkataswamy,
Aged about 58 years,
R/a No. 628, 11th Main,
HAL 2nd Stage,
Bangalore - 560 008.
12. Sri B.N. Krishnaiah, IAS,
S/o Late B.Narayana Swamy,
Aged about 57 years,
No. 13, 249, CHS,
Sai Narayana Sadan,
Opp. Ganapathi Temple,
Near BMTC Bus Stand,
5th Phase, Yelahanka New Town,
Bangalore - 560 064.
13. Mr. F.R. Jamadar, IAS,
S/o Sri Haji Nabi Sab,
Aged about 57 years,
R/a No. 406, 5th Cross,
2nd Block, HRBR Layout,
Bangalore - 560 043.
14. Sri N. Prakash, IAS,
S/o K. Narasegowda,
Aged about 57 years,
R/a No.4121/A, 19th Main,
HAL II Stage, Indiranagar,
Bangalore - 560 038.
15. Dr. Ramegowd, IAS,
S/o Sri M.J. Thimmegowda,
Aged about 57 years,
R/a C-82, 5th Cross,
4
Vasanth Nagar,
Bangalore - 560 052.
16. Sri N.Jayaram, IAS,
S/o Sri Narasimhaiah,
Aged about 47 years,
R/a No. 565/7, 9th Cross,
Sadashivanagar,
Bangalore - 560 080.
17. Sri S.N. Nagaraju, IAS,
S/o Sri Nanjaiah,
Aged about 58 years,
R/a No. 48, 1st Cross,
6th Main, 7th Block,
Nagarabhavi II Stage,
Bangalore - 560 072. ...Respondents
(By Sajjan Poovaiah, Addl. AG, for R1 to R3;
Sri B.V.Acharya, Sr. Counsel for Sri
L.M.Chidanandayya, Adv., For R11 and R12;
Sri P.S. Rajagopal, Sr. Counsel, for R16;
Sri D.N. Nanjunda Reddy, Sr. Counsel, for R13, 14, 15 & 17)
These Writ Petitions are filed under Articles 226 and 227
of the Constitution of India praying to quash the impugned
judgment and order dated 12.4.2013 at Annexure-A in the O.A.
No. 269 to 275/2013 pending on the file of the Hon'ble Central
Administrative Tribunal, Bangalore Bench, Bangalore.
These Writ Petitions coming on for Preliminary hearing
this day, N. KUMAR J., made the following:
O R D E R
These Writ Petitions are preferred by the Election Commission of India challenging the order passed by the 5 Central Administrative Tribunal, Bangalore Bench, staying the operation of the communication dated 26.3.2013 issued by the Election Commission of India and notification dated 27.3.2013 passed by the third respondent-State Government and directing restoration of the applicants to their respective posts prior to 27.3.2013.
2. No notice is issued to respondents-4 to 10, as they have not contested the matter before the Tribunal and they have not challenged the order of the Tribunal which is against their interest. In this writ petition, no relief is sought against them. On the contrary, the order in favour of the petitioners would enure to their benefit.
3. For the purpose of convenience, the parties are referred to as they are referred to in the application before the Tribunal.
4. Applicants 7 in number were initially appointed to the Karnataka Administrative Services in the State of 6 Karnataka. On the recommendation of the UPSC, the Government of India promoted them to the Indian Administrative Services for the State of Karnataka. After such promotion they have been working in different capacities as assigned by the State Government. They were all posted as Deputy Commissioners of Ramanagara, Mandya, Yadgir, Mangalore, Mysore, Belgaum and Raichur Districts respectively. After assuming the charge as Deputy Commissioners they were discharging their duties and responsibilities entrusted to them under law. They also held the elections to the Local Bodies in the State of Karnataka. They have held a free, fair and independent election to the Local Bodies.
5. The Election Commission of India declared the election to the Karnataka Legislative Assembly. The election is proposed to be held on 5.5.2013. The applicants as District Election Officers along with the Returning Officers who actually hold the elections have made preparations for conducting free and fair election on 5.5.2013. The revision of electoral roll was 7 undertaken by them. They have trained various Returning Officers. A meeting was called for in the Districts. They have presented a detailed presentation to the Election Commission of India with regard to conduct of free and fair election in their respective Districts. They have also inspected the electoral voting machines, conducted training to Returning Officers for various staff, they have completed preparatory works. When things stood thus, the Chief Election Officer as per Annexure- A8 dated 26.3.2013 directed transfers/posting with immediate effect the respondents 4 to 10 in the place of the applicants. They were directed to take over charge with immediate effect. Accordingly, the Government of Karnataka issued a notification dated 27.3.2013 as per Annexure-A9 transferring and posting respondents 4 to 10 in place of the applicants. On communication of the said order, the applicants have promptly handed over charge and they are relieved. Thereafter, they preferred an application on 3.4.2013 before the Tribunal challenging the said order of transfer being arbitrary, capricious, violative of right guaranteed to the applicants under Articles 14 and 16 of the Constitution of India. The said order 8 contravenes the minimum tenure fixed for the post of Deputy Commissioners under the Rules. The said order is contrary to the policy of the Election Commission. By such transfer a stigma is attached and therefore they contended that the impugned order of transfer is liable to be set aside. They also sought for an interim order of stay of the said orders.
6. After notice to the State and the Election Commission, they entered appearance and contested the matter. However, respondents 4 to 10 did not appear before the Tribunal.
7. The Tribunal by the impugned order held that there were no complaints against the applicants; that they have conducted elections to the Local Bodies on 7.3.2013; that they have completed the preliminary work to hold election on 5.5.2013 to the Assembly; and the order of transfer is premature. While issuing directions the Election Commission should have directed the State Government to follow the Rules to review the minimum tenure of the applicants as 9 contemplated under IAS (Cadre) Amendment Rules, 2006. When the statutory Rules were enacted by the Parliament, the respondents cannot violate the said Rules. On the prima facie conclusion that the said order is premature and is in violation of the said Rules, the Tribunal proceeded to pass an interim order of stay of the order of transfer and posting and further directed that the applicants be restored to their respective posts held BY THEM prior to 27.3.2013. Aggrieved by the said order, the Election Commission has preferred these petitions.
8. Sri G. Rajagopal, learned Senior Counsel appearing for the Election Commission, assailing the impugned order contended that, the power conferred on the Election Commission which is a constitutional authority under Article 324 is a plenary power. Clause (6) of Article 324 casts an obligation on the Governor of the State when so requested by the Election Commission to make available such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1). Clause (1) of Article 324 vests in the Election Commission the power of 10 superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of election to Parliament and to the State Legislature. Therefore, by virtue of the said powers conferred, the Election Commission requested the State Government to make available the services of respondents 6 to 12 by posting them to the place which they have mentioned. Though the said power is to be exercised in conformity with Articles 327 and 328 or the law made under those provisions, still under Article 324 the Election Commission has the residuary power to pass orders so as to conduct elections to the State Legislature. In fact, Section 13CC of the 1950 Act and Section 28A of The Representation of People Act, 1951 Act vests in the Election Commission the requisite powers for passing such orders. The said power has been exercised with the object of discharging a Constitutional responsibility of conducting free and fair election. But, the Tribunal committed a serious error in treating the case as a transfer under the IAS Rules and as the terms of the said Rules have not been complied with, it has held the order to be illegal and stayed the said order. The said approach of the Tribunal runs counter to 11 the Constitutional scheme and therefore he submits the said order requires to be set aside. In fact, the Tribunal has not gone into the question of irreparable injury. Already the persons transferred have taken charge, calendar of events has been issued on 10.4.2013, nominations are received, now in a couple of days the last date fixed for filing nominations is also coming to an end. At that stage if the present incumbents are to be disturbed, the entire electoral roll process would be affected which aspect has not been considered by the Tribunal. He further submitted these orders are passed only for the purpose of conducting free and fair election and this arrangement will come to an end when once this election is over and therefore he submits the applicants cannot have any grievance whatsoever.
9. Per contra Sri B.V. Acharya, learned Senior Counsel appearing for the applicants contended that the impugned order before the Tribunal is contrary to law, that it is contrary to the policy laid down by the Election Commission, that it is arbitrary and there is no application of mind before 12 passing the said order. It also casts stigma on the applicants and therefore the Tribunal rightly stayed the order and passed the impugned order. It cannot be found fault with.
10. Sri D.N. Nanjunda Reddy, learned Senior Counsel appearing for some of the applicants submitted that in view of the statutory provisions contained in Section 13AA of the Representation of People Act 1950 and 28A of the Representation of People Act 1951, the Election Commission could have got respondents-4 to 10 transferred without disturbing the applicants who were functioning as Deputy Commissioners. When there were no allegations against them and when they are transferred, not only the order is illegal, it attaches stigma to the applicants and therefore the Tribunal was justified in interfering with the said order.
11. Sri P.S. Rajagopal, learned Senior Counsel appearing for some of the applicants adopting the aforesaid stand submitted that the power exercised under Article 324 cannot eclipse the law made under Article 309 of the 13 Constitution of India. The impugned order is passed on 26.03.2013 even before the notification for holding elections is issued. On that date the Election Commission had no jurisdiction to pass the said order. Therefore the order dated 26.03.2013 is void ab initio and an order which is void ab initio cannot be retrospectively validated. The Election Commission, whatever may be the depth of the plenary power which is vested in them, cannot exercise the said power de hors the Rules. The State has not produced the file before the Court to show what is the material which was looked into by the authorities before effecting transfer. The impugned order of transfer is without any reason, arbitrary and it has harmed the reputation of the applicants. Therefore the said order requires to be set aside and the Tribunal was justified in staying the said order.
12. Sri Sajjan Poovaiah, the learned Additional Advocate General, submitted that the Government has faithfully implemented the direction issued by the Election Commission under Article 324 of the Constitution of India, in 14 the absence of any law passed by the State Legislature or Parliament with reference to transfer of Government servants during the period of election. As the field is not covered, the Election Commission had the jurisdiction and power to pass orders under Article 324 of the Constitution of India. By virtue of such power, they have issued a general direction. It does not mean they cannot issue any specific direction after issuing general direction. Therefore the impugned orders passed are valid and legal.
13. In the light of the aforesaid facts and rival contentions, the point that arise for our consideration in this writ petition is as under:
"Whether the Tribunal was justified in granting the interim order of stay of the impugned order passed by the Government giving effect to the direction issued by the Election Commission?"
14. The facts are not in dispute. The term of the Legislative Assembly of Karnataka will expire on 03.06.2013. 15 By virtue of its powers, duties and functions under Article 324 read with Article 172(1) of the Constitution of India and Section 15 of the Representation of the People Act, 1951, the Election Commission of India is required to hold elections to constitute the new Legislative Assembly in the State of Karnataka before expiry of its present term. Therefore the Election Commission recommended to the Governor of the State to issue notification for the General Elections to the Assembly under the relevant provisions of the Representation of the People Act, 1951. They also gave schedule for General Election to the Assembly. In that regard, the Election Commission of India issued a Press Note on 20.03.2013 enclosing schedule for General Election to be held on 05.05.2013. The Model Code of Conduct came into effect immediately from the date of Press Note on 20.03.2013. It is after issue of this Press Note and the Code of Conduct coming into force, the Chief Secretary to the Government of Karnataka was directed to transfer and post respondents-4 to 10 in place of the applicants. On 27.03.2013, the Government of Karnataka gave effect to the direction posting respondents-4 to 10 in place of the applicants. On the very same day, the 16 applicants were relieved. On 10.04.2003 the statutory notification under Section 15(2) of 1951 Act was issued.
15. The argument is, these applicants are governed by the Administrative Service (Cadre) Rules, 1954. Clause (c) of Rule 7 prescribes the tenure of such officers. The minimum tenure prescribed is two years. A cadre officer, appointed to any post for which the tenure has been so determined, shall hold the minimum tenure as prescribed except in the event of promotion, retirement, deputation outside the State or training exceeding two months. Sub-clause(3) provides that an officer may be transferred before the minimum prescribed tenure only on the recommendation of a Committee of Minimum Tenure as specified in the Schedule annexed to the rules. The Schedule specifies Composition of the State Committee to review minimum tenure. One of the functions of the said Committee is to examine the cases of officers who are proposed to be transferred before completion of minimum tenure as determined for Item 1 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) 17 Regulations, 1955. The procedure prescribed is the Committee shall seek detailed justification for the transfer of an officer before the prescribed tenure from the Administrative Department concerned of the Government. After considering the said report along with other inputs, it may have from other reliable sources and in its discussion after obtaining comments and views of the officer proposed to be transferred, if the Committee is satisfied regarding the inevitability of the premature transfer, it may make recommendation to the Government for such transfer. The grievance is, it is a sub- ordinate legislation and therefore the power to be exercised by the Election Commission should not contravene this law, which governs the transfer of the applicants. Admittedly, the case was not considered by the Committee to review the minimum tenure. They have not made any recommendation and therefore the order of transfer de hors these rules, is illegal and is liable to be set aside.
18
16. Therefore, the entire case revolves round the power of the Election Commission under Article 324 of the Constitution to pass such orders in the wake of the said rules.
17. It is in this background, we have to look into the statutory provisions. Article 324 of the Constitution reads as under:
"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 the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election 19 Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause ( 1 ).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:20
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission 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).
18. Section 13CC of the Representation of the People Act, 1950 declares that all officers of the State employed in connection with the election work shall be deemed to be on 21 deputation to the Election Commission for the period during which they are so employed. It reads as under:
"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."
(Underlining by us) Section 20A of the Representation of the People Act, 1951 defines the general duties of district election officer. It reads as under:
"20A. General duties of district election officer.- (1) Subject to the superintendence, 22 direction and control of the chief electoral officer, the district election officer shall co-ordinate and supervise all work in the district or in the area within his jurisdiction in connection with the conduct of all elections to Parliament and the Legislature of the State.
(2) The district election officer shall also perform such other functions as may be entrusted to him by the Election Commission and the chief electoral officer."
Again, Section 28A of the Representation of the People Act, 1951 deals with deemed deputation. It reads as under:
"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 23 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."
(Underlining by us)
19. The Constitution Bench of the Apex Court consisting of seven Judges in the case of MOHINDER SINGH GILL & ANR Vs. CHIEF ELECTION COMMISSIONER, NEW DELHI reported in AIR 1978 SC 851 dealing with the question, what in its comprehensive connotation does the conduct of election mean or for that matter the superintendence, direction and control of elections, have laid down the following law:
"38. Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary powers to discharge that function. It is true that Art. 324 has to be read in the light of the constitutional scheme and the 1950 Act and the 1951 Act.24
Sri Rao is right to the extent he insists that if competent legislation is enacted as visualized in Article 327 the Commission cannot shake himself free from the enacted prescriptions. After all, as Mathew, J. has observed in Indira Gandhi (AIR 1975 SC 2299) "In the opinion of some of the judges constituting the majority in Bharati's case (AIR 1973 SC 1461),(supra) rule of law is a basic structure of the Constitution apart from democracy".
The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere."(p.523 of SCR): (at p.2384 of AIR)"
And the supremacy of valid law over the Commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Art. 324. Likewise, his functions are subject to the norms of fairness and he cannot act 25 arbitrarily. Unchecked power is alien to our system.
39. Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Art. 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fide, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. More is not necessary to specify; less is insufficient to leave unsaid. Article 324, in our view, 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. Myriad may be, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frankenstein's monster who may manipulate the system into elected despotism--instances of such phenomena are 26 the tears of history. To that the retort may be that the judicial branch, at the appropriate stage, with the potency of its benignant power and within the leading strings of legal guidelines, can call the bluff, quash the, action and bring order into the process. Whether we make a triumph or travesty of democracy depends on the man as much as on the Great National Parchment. Secondly, When a high functionary like the Commissioner is vested with wide powers the law expects him to act fairly and legally. Article 324 is geared to the accomplishment of free and fair elections expeditiously. Moreover, as held in Virendra (1958) SCR 308: (AIR 1957 SC 896) and Harishankar (1955) 1 SCR 380: (AIR 1954 SC
465) discretion vested in a high functionary may be reasonably trusted to be used properly, not. perversely. If it is misused, certainly the Court has power to strike down the act. This is well-established and does not need further case law confirmation. Moreover it is useful to remember the warning of Chandrachud, J (at p.2465 of AIR 1975 SC):
"But the electorate lives in the hope that a sacred power will not so 27 flagrantly be abused and the moving finger of history warns of the consequences that inevitably flow when absolute power has corrupted absolutely. The fear of perversion is no test of power."
40. The learned Additional Solicitor General brought to our notice rulings of this Court and of the High Courts which have held that Art.
324 was a plenary power which enabled the Commission to act even in the absence of specific legislation though not contrary to valid legislation. Ordering a re-poll for a whole constituency under compulsion of circumstances may be directed for the conduct of elections and can be saved by Art. 324- provided it is bona fide necessary for the vindication of the free verdict of the electorate and the abandonment of the previous poll was because it failed to achieve that goal. While we repel Sri Rao's broadside attack on Art. 324 as confined to what the Act has conferred, we concede that even Art. 324 does not exalt the Commission into a law unto itself. Broad authority does not bar scrutiny into specific validity of the particular order.
28
41. Our conclusion on this limb of the contention is that Art, 324 is wide enough to supplement the powers under the Act, as here, but subject to the several conditions on its exercise we have set out."
91. xxxxx
1. xxxxxxx 2(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the exercise thereof.
Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of such provision but where such law is silent Art. 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with 29 expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz., elections. Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunal's adjudication."
Following the said judgment, the Apex Court in the case of A.C. JOSE Vs. SIVAN PILLAI AND OTHERS reported in (1984) 2 SCC 656, held as under:
"4. Article 324 of the Constitution gives full powers to the Commission in matters of Superintendence, direction and control of the preparation of electoral rolls and also for the conduct of elections to the Parliament and 30 State Legislatures. It was argued that the Commission being a creature of the Constitution itself, its plenary powers flowing directly from Art. 324 will prevail over any Act passed by the Parliament or Rules made thereunder. In order to buttress this argument, it was contended that the manner of voting was a matter coming within the ambit of Arts. 324 and 327 which empowered the Parliament to make laws in respect of matters relating to or in connection with the elections to the Parliament or the State Legislatures and would be deemed to be subsidiary to the power contained in Art. 324 and if there was any conflict between a law enacted by the Parliament and the powers given to the Commission regarding regulating the conduct of elections to Parliament that law must yield to Art. 324, otherwise the very object of Art. 324 would be defeated.
7. 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 Art. 324 does authorise the Commission to exercise 31 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.32
Again the Constitution Bench of the Apex Court in the matter of Special Reference 1 of 2002 reported in (2002) 8 SCC 237 at paragraph 76, has held as under:
"It is in light of the aforesaid discussion, Article 324 was enacted and the superintendence, direction, control and conduct of election was no more left in the hands of the Executive but was entrusted to an autonomous Constitutional Authority i.e. the Election Commission. It appears that since the entire matter relating to the elections was entrusted to the Election Commission, it was found to be a matter of no consequence to provide any period of limitation for holding fresh election for constituting new Legislative Assembly in the event of premature dissolution. This was deliberate and conscious decision. However, care was taken not to leave the entire matter in the hands of the Election Commission and, therefore, under Article 327 read with Entry 72 of List I of Seventh Schedule of the Constitution, Parliament was given power subject to the provisions of the Constitution to make provisions with respect to matters 33 relating to or in connection with the election of either House of Parliament or State Legislature, as the case may be, including preparation of electoral roll. For the States also, under Article 328 read with Entry 37 of List II, the Legislature was empowered to make provisions subject to the provisions of the Constitution with respect to matters relating to or in connection with election of either House of Parliament or State Legislature, including preparation of electoral roll. Thus, the Parliament was empowered to make law as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission. In this view of the matter, the general power of superintendence, direction, control and conduct of election although vested in the Election Commission under Article 324(1), yet it is subject to any law either made by the Parliament or State Legislature, as the case may be which is also subject to the provisions of the Constitution. The word 'election' has been interpreted to include all the steps necessary for holding election. In Mohinder Singh. Gill v. Chief Election 34 Commissioner ((1978) 1 SCC 405: AIR 1978 SC 851), A.C. Jose v. Sivan Pillai and Ors. ((1984) 2 SCC 656) and Kanhiya Lal Omar v. R.K. Trivedi and Ors.,(1985) 4 SCC 628: AIR 1986 SC 111) it has been consistently held that Article 324 operates in the area left unoccupied by legislation and the words 'superintendence, 'control' 'direction' as well as 'conduct of all elections' are the broadest of the terms. Therefore, it is no more in doubt that the power of superintendence, direction and control are subject to law made by either Parliament or by the State Legislature, as the case may be, provided the same does not encroach upon the plenary powers of the Election Commission under Article 324."
The Apex Court in the case of ELECTION COMMISSION OF INDIA Vs. STATE BANK OF INDIA, PATNA & ORS reported in AIR 1995 SC 1078, dealing with the power of the Election Commission under Article 324 of the Constitution, in particular clause (6), has held as under:
"17. We have already extracted clause (6) of Article 324 which empowers the Election 35 Commission to request the President, or the Governor of the concerned State to make available such staff as may be necessary for it to carry out its duty under clause (1). Such a provision was necessary for the obvious reason that since the Election Commission has to hold elections at intervals it is not required to maintain a huge staff at considerable expense to the exchequer and therefore the power to seek on request such staff as is necessary came to be engrafted in the constitution itself.
18. We assume that the powers of the Election Commission under Article 324 are plenary. Therefore, the Election Commission may issue any direction in the matter of conduct of elections. But the question is, in the garb of conduct of elections, can the Election Commission usurp the power not vested in it? This will depend on the understanding of clause (6) of Article 324. For the conduct of elections when the Election Commission makes a request to the President or the Governor to make available the staff they are obliged to provide the services. What is the meaning of 'such staff?
According to Mr. Dushyant Dave we should refer to Article 310 which talks of a member of 36 Civil Service (in contradistinction to Defence Service of the Union or the State), holding office during the pleasure (Durante bene placito) of President or the Governor. Obviously 'such staff' can only mean that staff which is under the control of the President or the concerned Governor and not any staff over which they do not exercise control. It could mean only that staff on which the President or the Governor, as the case may be, would be in a position to exercise disciplinary powers should they refuse the President's or Governor's directive. Although the Constitution-makers did not say the Union or the State Governments but only the President or the Governor, it is obvious they would have to act consistently with Articles 74(1) and 163(1), respectively. Therefore, on a request by the Election Commission the services of those Government servants who are appointed to public services and posts under the Central or State Governments will have to be made available for the purpose of election. When the Constitution came into force the services of these officers were readily available. Of course, there were also local authorities and the services of the employees of the local authorities were also available. That is why Section 159 of 37 the 1951 Act provides that on request from the Regional Commissioner or the Chief Electoral Officer of the State, the local authority of the State shall make available to any Returning Officer such staff as may be necessary to carry out the duties in connection with an election."
20. In the light of the aforesaid provisions and in the light of the judgment of the Apex Court, it is clear that the power conferred on the Election Commission under Article 324 of the Constitution is plenary in nature. It gives full power to the Commission in the matters of superintendence, direction and control of preparation of electoral rolls and also for the conduct of elections to the Parliament and the State Legislature. 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. The Parliament has enacted the Representation of the People Act, 1950 to provide the allocation of seats in and the delimitation of constituencies for the purpose of election to, the House of the People and the Legislatures of States, the qualifications of 38 voter at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by representatives of Union territories and matters connected therewith. It provides for allocation of seats and delimitation of constituencies, appointment of chief electoral officers, district election officers, electoral registration officers. It also provides for preparation of electoral rolls for Parliamentary constituencies and Assembly constituencies and also for Council constituencies. It also provides for manner of filling seats in the Council of States to be filled by representatives of Union Territories.
21. This Act of 1950 did not contain all the provisions relating to elections but merely provided for allocation of seats in and delimitation of constituencies for the purpose of election of the House of People and Legislatures of States, the qualifications of the voter at such election and the preparations of electoral rolls. Provisions for the actual conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications for the membership 39 of these Houses, the corrupt and illegal practices and other election offences, and the decision of election disputes were all left to be made in a subsequent measure. In order to provide for these provisions the Parliament enacted Representation of the People Act, 1951. It provides for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. It provided for qualifications for membership of Parliament, State Legislatures, disqualifications for membership of Parliament and State Legislatures, disqualification for voting and notification of General Elections. It also provides for administrative machinery for the conduct of elections, appointment of observers, returning officers. Further it provides for registration of political parties, nomination of candidates, candidates and their agents, general procedure at elections. It also provides for the Poll, counting of votes, multiple elections, 40 publication of election results and nominations, election expenses, free supply of certain material to candidates of recognized political parties, dispute regarding election, trial of election petition, appeal against the order in election petitions, etc.,
22. Article 324 has to be read in the light of the constitutional scheme and the Representation of the People Act 1950 and 1951. They have to be read harmoniously. Thus, the Parliament was empowered to make law as regards matters relating to conduct of election of either Parliament or State Legislature, without affecting the plenary powers of the Election Commission. Therefore, it is no more in doubt that the power of superintendence, direction and control are subject to law made by either Parliament or by the State Legislature, as the case may be, provided the same does not encroach upon the plenary powers of the Election Commission under Article 324 of the Constitution. If competent legislation is enacted as visualized in Article 327 and 328 of the Constitution the Commission cannot shake itself free from the enacted 41 prescriptions. No one is an imperium in imperio in our constitutional order. The Commissioner cannot defy the law contained in Article 324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system. It 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. x Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with conduct of elections, the Commission shall act in conformity with, not in violation of such provision. But where such law is silent Art. 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order, viz., elections. 42 Article 324 was enacted and the superintendence, direction, control and conduct of election was no more left in the hands of the Executive but was entrusted to an autonomous Constitutional Authority i.e. the Election Commission.
23. Article 312 of the Constitution provides that Parliament may, by law, regulate the recruitment and the conditions of service of persons appointed to the All India Services common to the Union and the States. In the absence of any provision in Article 312 similar to that included in Article 309, the Government of India was compelled to deal with many of these matters by means of non-statutory executive orders. The same was neither satisfactory nor quite justifiable. To provide the requisite statutory authority to enable the Government of India to carry on the day to day management of the two All India Services and also to take and promulgate decisions on matters relating to the recruitment and the conditions of service from time to time. All India Services Act, 1951 was enacted by the Parliament to regulate the recruitment and the conditions of service of person 43 appointed to the All-India Services common to the Union and the States. It seeks to fill the constitutional lacuna without proceeding to incorporate any detailed provisions. The Act provides that recruitment and conditions of service of officers of the two All India Services shall be regulated by rules to be made by the Central Government in consultation with the Governments of the participating States. By virtue of power conferred under the said Act, the Administrative Service (Cadre) Rules 1954 was made. This Act and the Rules do not deal with the conduct of election either to the Parliament or to the Legislative Assemblies of the States. It only regulates the service conditions of persons appointed to All India Services common to Union and the States. The Indian Administrative Service Rules on which reliance is placed, is not the law relating to or in connection with elections. It has nothing to do with the elections. It regulates the service condition of the officers who are recruited under the Act. It prescribes the minimum tenure and also prescribes the procedure for transfer of such officers even before the completion of the minimum tenure. It does not deal with in any manner regarding their 44 service during elections. Once the said law is not in any way connected with the elections, the question of Commission exercising its power under Article 324 in conformity with the said provision, would not arise. Once the said law is silent about how the services are to be utilized during elections, then Article 324 being a reservoir of power confers on the Election Commission power to pass such appropriate orders or issue such appropriate directions for conduct of free and fair election.
24. In the Constituent Assembly when the question of making the Election Commission an independent body was being debated, At page 905, Constituent Assembly Debates (Vol.8), Dr. Ambedkar observed thus:
"But the House affirmed without any kind of dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day. In pursuance of the decision of the House, the Drafting Committee removed this question 45 from the category of Fundamental Rights and put it in a separate part containing Articles 289, 290 and so on, Therefore, so far as the fundamental question is concerned that the election machinery should be outside the control of the executive Government, there has been no dispute. What article 289 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparation of the electoral rolls and of all elections to Parliament and the Legislatures of States to a body outside the executive to be called the Election Commission."
25. The Constitution of our country ushered in a Democratic Republic for the free people of India. The founders of the Constitution took solemn ease to devote a special chapter to Elections nitched safely in Part XV of the Constitution. Elections supply the Vis Viva to a democracy. It was, therefore deliberately and advisedly thought to be of paramount importance that the high and independent office of the Election Commission should be created under the Constitutions to be in complete charge of the entire electoral 46 process commencing with the issue of the notification to the final declaration of the results. Election Commission in our democratic scheme is a central figure and a high functionary. As is clear from the Constituent Assembly debate, the superintendence, direction and control of the preparation of the electoral rolls and all elections to Parliament and the Legislatures of States was transferred to a body outside the executive to be called the Election Commission. Therefore, the Election Commission is a Constitutional authority and is a body outside the Executive. We have adult franchise and general elections as constitutional compulsions. The right of election is the very essence of the Constitution. The heart of the parliamentary system is free and fair election periodically held, based on adult franchise is the basic. The regulatory procedures vis-a vis the repositories of functions and the distribution of legislative, executive and judicatire roles in the total scheme, directed towards holding of free elections are the species. The fairness of the Constitution took care of leaving scope for exercise of residuary power by the Commission in its own right, as a creature of the Constitution, in the infinite 47 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 raison d'ctre for the opening clause in Article 327 and Article 328 of the Constitution which leaves the exercise of powers under Article 324 operative and effective when it is reasonably called for in a vacuous area. Election Commission is insulated from extraneous influences and that cannot be achieved unless it has amplitude of powers in the conduct of elections in accordance with the existing laws. But where the law is absent, he must lawfully exercise his power independently, in all matters relating to the conduct of elections and see that the election process is completed properly and in a free and fair manner. Article 324 of the Constitution operates in areas left unoccupied by legislation and the words superintendence, direction and control as well as conduct of elections are the broadest terms. An express statutory grant of power or the 48 imposition of a definite duty carries with it by implication in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty. That which is clearly implied is as much a part of a law as that which is expressed. Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred and which must therefore be presumed to have been within the intention of the Constitutional or legislative grant.
26. Clause (6) of Article 324 provides that for the conduct of elections when the Election Commission makes a request to the President or Governor to make available the staff, they are obliged to provide the services. Such staff used in the said provision can only mean, that staff which is under the control of the President or the concerned Governor and not any other staff over which they do not exercise control. It can mean only the staff on which the President or the Governor as the case may be would be in a position to exercise disciplinary 49 powers. Although the Constitution-makers did not say the Union or the State Governments but only the President or the Governor, it is obvious they would have to act consistently with Articles 74(1) and 163(1), respectively. Therefore on a request by the Election Commission, the services of those Government servants who are appointed to public services under Central or State Government will have to be made available for the purpose of election. Part IIA of the 1950 Act deals with officers. Section 13CC makes it clear that the officers referred to in the said 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. Similarly Part IV of the 1951 Act, provides for administrative machinery for the conduct of elections. Section 28A in the said Part reiterates what is contained in Section 13CC of the 1950 Act and provides that the returning officer, assistant returning officer, 50 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.
27. Therefore under the scheme of the Act, clause (6) of Article 324 of the Constitution, read with Section 13CC of 1950 Act and Section 28A of the 1951 Act, makes it clear that the Government officials who are under the control of the Government when they are deputed to the Election Commission for the purpose of conduct of elections, their deputation would commence on and from the date of notification calling for such election and ending with the date of declaration of the results of such election. There is no law 51 passed by the Parliament or the State Legislature providing for such transfer or deputation or appointment during the period of General Election. When there is no Parliamentary legislation or Rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections. Once the area is not covered by any legislation, then Article 324 being a reservoir of power, confers on the Election Commission power to pass such appropriate orders or issue such appropriate direction for conduct of free and fair election.
28. It is by virtue of such power conferred on the Election Commission, it has issued directions to the State Government to make available the officers who in their opinion are needed for conduct of election. In obedience of the said direction issued, the Government has passed the impugned order of transfer. Though in the impugned order, the word 'transfer' is used, it is to be understood in the context in which it is passed. It is not a transfer which is governed by All India Services Rules framed under the All India Services Act, 1951. The said Rule does not provide for transfer of a person 52 appointed to the All India Service, to the Election Commission during election. Therefore when the said law is silent about how the services are to be utilized during elections, the Election Commission has a free hand and if it requests or directs the Government, the Government is bound to honour the said request/direction. The Election Commission has not assigned any reasons why they are displacing these applicants. The Election Commission has no obligation to give reasons for opting for such officers. Similarly, they are under no obligation to give reasons why the person incumbent is not required. It is the matter of confidence the Election Commission has in a particular officer. Having regard to the number of days these persons are going to be displaced, there is no obligation cast on the Election Commission either to give reasons or point out in what circumstances these transfers are effected. It is made clear that when a Government servant is transferred on a direction issued by the Election Commission, the said direction is to be understood in the context of conducting free and fair election. It has no reflection on the integrity or character or the capacity or competence of the said person. It cannot, under 53 any circumstances, be held against him. The apprehension of the applicants that in the eye of the public or otherwise, it may amount to stigma, is without any substance. The impugned order does not cast any stigma on the applicant. Once the election process is over, they will be reverted back to their original position and therefore they cannot have any grievance whatsoever. As the period during which the transfer will be in force is a very short period and the purpose of such transfer being to conduct free and fair election, the said action cannot be found fault with on any count. In the matter of election, when the ultimate responsibility is that of the Election Commission, being a Constitutional authority, they have onerous responsibility of conducting free and fair election in order to preserve democracy in the country. It is to achieve the said object, for a limited period, the impugned order is passed.
29. The argument that the Election Commission, even though they chose to requisition the services of these officers from the Government for election work and if they are to be transferred and posted before the expiry of the minimum 54 tenure, they should make a request to the State Government, which in turn should make a request to the Committee to consider their case and make recommendation and then only they can be posted, holds no water. The said rule is not meant to deal with a situation where elections are announced to the Legislative Assembly. It is not a case of transfer. It is a case of deemed deputation. The said rule is silent and therefore under Article 324 of the Constitution, the Commission has the power to issue directions to transfer and post the officials for the proper conduct of the elections.
30. In the instant case, after preliminary preparations are made for conducting election, before issue of notification calling for the elections, the Election Commission wanted these respondents-4 to 10 to be posted in place of applicants during the period of election. Once they are so posted, after the issue of notification, they are 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 results of such election and 55 accordingly such officers shall, during that period are subject to control, superintendence and discipline of the Election Commission. Therefore the order passed by the Election Commission directing the State to post these officers in the place suggested by them would result in deemed deputation to the Election Commission for the aforesaid period. Once declaration of results of such election is announced, the said deputation comes to an end and at the end of the deputation, the officers are reverted back to their parent organization (previous post held by them).
31. Unfortunately, the Tribunal proceeds on the assumption that there are no complaints against these persons and without complaint, a person cannot be transferred and before such transfer is effected, the Rules have to be followed. In the first place, it is not a case of transfer. It is not a case of premature transfer. It is a case of deputation for a limited period and for a specific purpose of conducting elections. Therefore, the said Rules have no application. There is no obligation either on the part of the Election Commission or on 56 the State Government to follow the Rules before effecting transfer or posting. Therefore there is no substance in the said contention as well.
32. Under these circumstances, we pass the following order:
(a) Writ petitions are allowed.
(b) The impugned order passed by the Tribunal is
hereby set aside.
(c) It is made clear that this order of transfer
which is challenged by the applicants before the Tribunal is in the nature of deputation and deputation comes to an end the moment the results of the elections are announced.
Consequently the deputationists would be reverted back to their original organization (previous post held by them) without any order from the State Government.
57
(d) Parties to bear their own costs.
(Sd/)
JUDGE
(Sd/-)
JUDGE
ckl/ksp/-