Madhya Pradesh High Court
Mansharam Badole vs The State Of Madhya Pradesh on 9 December, 2021
Author: Vivek Agarwal
Bench: Vivek Agarwal
1 WP-27185-2021
The High Court Of Madhya Pradesh
WP No. 27185 of 2021
(MANSHARAM BADOLE Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 09-12-2021
Shri Jubin Prasad, learned counsel for the petitioner.
Shri Maneesh Kholiya, learned Panel Lawyer for the respondent/ State.
Petitioner has assailed impugned transfer order dated 02.12.2021 (Annexure-P/2), whereby petitioner whose name appears at serial no.24 has been transferred from the post of Incharge Chief Municipal Officer, Nagar Parishad Pandhana, District- Khandwa to the post of Incharge Chief Municipal Officer, Nagar Parishad to Khurd, District- Dewas on administrative grounds.
Petitioner's contention is that vide order dated 13.02.2020, he was given charge of Incharge Chief Municipal Officer, Nagar Parishad Pandhana. He further submits that on 04.12.2021, elections in the Panchayat have been declared and, therefore, Model Code of Conduct has come into affect on 04.12.2021, therefore, transfer orders cannot be executed during the existence of model code of conduct.
Learned counsel for the petitioner has placed reliance on order dated 06.12.2021 and 08.12.2021 respectively passed by Sub Divisional Officer, Pandhana whereby petitioner has been asked to carry out the work of commissioning of EVM and sealing up to 10.01.2022, in the premises of Pandhana College. Second communication deals with direction to provide necessary facilities in the strong room at Government College, Pandhana and placing reliance on these two documents, it is submitted that since petitioner's services have been requisitioned for the purposes of election, therefore, petitioner cannot be relieved.
Learned counsel for the petitioner has also placed reliance on the provisions contained in Section 13CC of the Representation of People Act, 1950 and submits that the officers referred to in this part and any other officer or staff employed in connection with the preparation, revision and collection Signature Not Verified SAN Digitally signed by APARNA TIWARI Date: 2021.12.10 17:12:10 IST 2 WP-27185-2021 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.
Learned counsel for the petitioner has also placed reliance on two decisions of Co-ordinate Benches passed in W.P. No.19766/2021 and W.P. No.22872/2021 where Co-ordinate Bench has shown indulgence in the matter of transfer of Booth Level Officer in terms of the provisions contained in Representation of Peoples Act, 1950.
Petitioner's contention is that during ban period, transfers could have been affected only in terms of the provisions contained in para-9 of the transfer policy dated 24.06.2021 and transfers affected in violation of this policy are required to be set at nought.
Shri Maneesh Kholiya, learned Panel Lawyer for the respondent/ State in his turn submits that he has instructions to submit that impugned transfer order has been passed after taking concurrence of the Chief Minister in co- ordination as is the requirement of clause-9 of the transfer policy therefore, there is no violation of any of the provisions of the transfer policy. He further submits that transfer order has been issued taking into consideration, exigency of the service and since it has been passed prior to coming into force of Model Code of Conduct when elections were declared on 04.12.2021, there is no bar on execution of transfer orders affected prior to coming into force of the Model Code of Conduct.
He further submits that provisions of Section 13CC of the Representation of People Act, 1950 are applicable in relation to the elections to be conducted for State Assemblies, State council and the Parliament and not for the Panchayat elections.
After hearing learned counsel for the parties and going through the Signature Not Verified record, as far as transfer order is concerned admittedly it was issued on SAN Digitally signed by APARNA TIWARI Date: 2021.12.10 17:12:10 IST 3 WP-27185-2021 02.12.2021, elections were declared on 04.12.2021, therefore, Model Code of Conduct will not be applicable retrospectively and will not hamper the transfers which were already affected, prior to coming into force of Model Code of Conduct.
As far as petitioner's contention that exigency as mentioned in para-9 are not fulfilled then it is to be seen that if orders have been passed after taking concurrence of Chief Minister in co-ordination then transfer policy having its own limitations and being not justiciable, no indulgence can been shown in the matter, once it has come on record and as has been stated by Shri Maneesh Kholiya, learned Panel Lawyer for the respondent/ State that he has instructions to inform this Court that transfer order has been issued after taking concurrence of Chief Minister in co-ordination.
As far as, directions of Sub Divisional Officer are concerned, they are to the Chief Municipal Officer, Nagar Parishad, Pandhana and they are to be complied with by the concerned authority who so ever mens' the post of Chief Municipal Officer, Pandhana and merely because petitioner's name is mentioned in one of the orders will not make it an order in person and thus this ground is also not available to the petitioner to seek indulgence of this Court in the matter of transfer.
As far as orders passed by Co-ordinate Benches are concerned, they are in regard to Booth Level Officers. It is not petitioner's contention that he has been appointed as Booth Level Officer and, therefore, provisions of Section 13CC of Representation of People Act, 1950 will be applicable to them.
In view of such facts, transfer order having been affected in administrative discretion of the authorities with the concurrence of the Chief Minister in co-ordination does not call for any interference specially when petitioner has fairly admitted that it is not that the petitioner was posted in Khandwa District, for the first time vide order dated 13.02.2020 but has been working at Khandwa since his appointment as Revenue Sub Inspector in the Signature Not Verified SAN Digitally signed by APARNA TIWARI Date: 2021.12.10 17:12:10 IST 4 WP-27185-2021 concerned department. Therefore, even that ground of frequent shifting is not made out calling for interference.
Accordingly, petition fails and is dismissed.
(VIVEK AGARWAL) JUDGE AT Signature Not Verified SAN Digitally signed by APARNA TIWARI Date: 2021.12.10 17:12:10 IST