Patna High Court
Kanhaiya Prasad Sinha vs Union Of India (Uoi) And Ors. on 12 February, 1990
Equivalent citations: AIR1990PAT189, 1990(38)BLJR714, AIR 1990 PATNA 189, (1990) 2 LAB LN 874, (1990) 2 BLJ 312, (1990) 1 PAT LJR 550, 1990 BLJR 1 714
JUDGMENT S. Ali Ahmad, J.
1. The petitioner was posted as Subdivisional Officer of Muzaf-farpur West Subdivision. By the order dated 6-1-1990 (Annexure 5), he was transferred to report in the department of Personnel and another officer, namely, Badri Nath Prasad Verma, respondent No. 7, was posted as Sub-divisional Officer, Muzaffarpur West. The petitioner has challenged the order of transfer on the ground that it is in violation of the direction issued by the Election Commission.
2. The Election Commission issued directions from time to time under Article 324 of the Constitution of India asking the State Government not to transfer its officers and staff, who were connected with the conduct of the election. The first direction in the series was Annexure 1 a letterdated 26th July, 1989, written by the Secretary to the Commission to the Chief Secretaries of all the States and Union Territories. This letter, inter alia, states that since the elections to the Lok Sabha and to the Legislative Assemblies in some of the States, including Bihar, were due, therefore, a ban should be imposed on the transfers of officers and staff connected with the conduct of election. In the said communication, the classes of officers and staff, who could be said to have connection with the conduct of election were identified. The Chief Secretary of the State consequently issued letters to all the Heads of Departments and concerned authorities drawing their attention to the letter contained in Annexure 1 (sent by the Secretary to the Election Commission) and requested them to comply with the directions. Although there are some more communications between the Election Commission and the State Government on the subject before the Lok Sabha Elections were over, but they are not relevant for the purpose of this case as the petitioner was not transferred prior to the conclusion of the Lok Sabha Election. The petitioner, as we have said above, was transferred by Annexure 5, an order dated 6-1-1990. Before 6-1-1990 and after the Lok Sabha Elections another direction contained in Annexure 3 was received. The directions were sent to the State Government by telex. It reads as follows:--
"General Election to Legislative Assemblies 1990 in pursuance of decision taken at the meeting of Chief Electoral Officers held on I4th Dec., 1989 in Commission Secretariat, the ban on transfer of officers which was imposed, vide Commission's letter No. 434/1/89 dated 26th July, 1989 may be treated as reimposed till the general elections to Legislative Assemblies due in February-March, 1990 are completed. All other instructions contained in Commission's letter of 26th July, 1989 will be followed....... A copy of the said letter is enclosed with post copy".
The Election Commission, it appears, received certain reports that the directions issued by it were riot being observed. It, therefore, sent another letter dated 26th December, 1989, to several State Govern-ments drawing their attention to Article 324 of the Constitution of India and saying that the violation of the instructions without clearance from the Commission will be viewed as violation of not only Article 324 but also an attempt to interfere with the process of free and fair election. This letter is contained in Annexure 4. The petitioner says that in spite of the directions issued by the Election Commission contained in Annexures 3 and 4 and also Annexure 2, the State Government transferred the petitioner as mentioned in Annexure 5.
3. It appears that the petitioner did not hand over charge in pursuance of Annexure 5, the order of transfer. An order as contained in Annexure 7 dated 17th January, 1990 was issued by the District Magistrate, Muzaffarpur saying that the petitioner will be deemed to have been relieved in the forenoon of 18th January, 1990 even if he did not hand over charge. As a result of this order, the petitioner stood relieved from the post of Subdivisional Officer, Muzaffarpur West with effect from forenoon of 18th January, 1990. This position is, however, not accepted by the petitioner, who says that he did not hand over charge and as such continue to be the Subdivisional Officer, Muzaffarpur West. I am not impressed by this stand taken by the petitioner. The order contained in Annexure 7 is quite clear; Further, the counter-affidavit filed on behalf of the State also makes it clear that respondent No. 7 had taken charge of the post of the Subdivisional Officer, Muzaffarpur West. Be that as it may, the question that arises in this application is as to whether the transfer order as contained in Annexure 5 should be quashed. It will also be not out of place to mention certain more facts which are as follows:--
The Chief Electoral Officer, Bihar sent a telex message to the Secretary, Election Commission on 15th January, 1990. It, inter alia, stated that no officer connected with election work shall be transferred without the prior approval of the Election Commission and that all unimplemented transfer orders shall be kept pending and in case it is considered essential to get them implemented then the approval of the Commission shall be taken. It also stated that all transfer orders issued after 20th December, 1989, and which have been implemented shall be placed before the Commission through the Chief Electoral Officer for post facto approval. The telex message further shows that the lists of District Magistrates and Superintendent of Police, who were transferred after the 20th of December had already been sent to the Commission and that the lists of Sub-divisional Officers and Additional District Magistrates, who were also returning officers was to be sent later on that very day. It is stated by Mr. Advocate General on behalf of the State that the lists were consequently sent for post facto approval of transfers of officers and staff connected with the conduct of elections.
4. Mr. Chandramauli appearing in support of the application came armed with a number of decisions. He contended that directions issued under Article 324 of the Constitution of India were mandatory in nature and any violation of that should be seriously viewed. He says that this was necessary for free and fair conduct of elections. He accordingly urged that since the instructions have been violated, therefore, the transfer of the petitioner as per Annexure 5 should be quashed. We asked Mr. Katariar, who appeared on behalf of the Commission as to whether the Commission still insists that the transfer of the petitioner should not be implemented as it was in violation of the direction issued by it. Mr. Katariar informed us that he has received instruction to state that the Commission does not intend to appear in this case. We recorded this fact in our order dated 6-2-1990. We also asked Mr. Katariar to get in touch with the Commission and to take positive instruction as to whether it approves the transfer of the petitioner or that it wants status quo ante as existed prior to the forenoon of 18th January, 1990 to be restored. Mr. Katariar today produced before us a letter from the Joint Chief Electoral Officer, Bihar and Joint Secretary to the Government dated llth February, 1990 addressed to him. The letter is a longish one. It mentions in short about different communications made by the Commission on the subject. It shows that the Commission on a consideration of all matters said : "thereupon the Commission further considered the matter and came to the view that re-
transferring the officers to their original posts would further dislocate the election work apart from causing all round inconvenience and as such would not be in the interest of smooth and orderly conduct of elections". It accordingly decided not to pursue the matter further.
5. The Constitution provides for a Parliamentary form of Government and the onerous task of conducting free and fair election has been assigned to the Election Commission. But the Election Commission does not have its own independent machinery to conduct elections to the Parliament and to the different Legislatures of the States. It has to take help and assistance from the officers and staff of the State Governments. The Constitution, therefore, under Article 324 gives powers to the Commission to issue directions for placing officers and staff of the Government at its disposal so that a fair election can be conducted in a peaceful manner. It can also for the same purpose impose a ban on transfer of officers and staff, who are connected with the conduct of the election. Unless, therefore, the directions for the purpose are implemented, it may not be possible to conduct election with the result that there will be no proper constitution of Parliament and State Legislatures. The question as to whether the directions issued under Article 324 of the Constitution are mandatory or directory is not very material because even if they are directory in nature they cannot be easily ignored. They have to be respected and implemented. In case the directions so issued by the Commission are not respected then in appropriate cases the Court may examine the same and pass appropriate orders. But this is a matter purely between the Commission and the concerned States and that too for the purposes of only conducting elections in a fair and smooth manner. But mere violation, if at all, does not and cannot give handle to a person to challenge his transfer on the ground that the same has been made in violation of the directions issued by the Commission. There may, however, be the case where the officer challenges his transfer on the ground of violation of the instructions issued by the Commission at a stage when the actual election process has commenced and he has been assigned specific role by the Commission in the conduct of the election. Such a case may be an exception to the general rule and I am not expressing any opinion as to whether in such a situation the concerned officer will have no locus standi to challenge his transfer when the Commission insists on revocation of the transfer. In this case, I find that the Commission itself says that retransferring the officers to their original posts would further dislocate the election works. 1 quite appreciate the stand taken by the Election Commission, I, therefore, do not feel inclined to interfere in this case. I may also bring on record the insistence of Mr. Chandramauli to decide the scope, sweep and effectiveness of the directions issued under Article 324 of the Constitution of India, but in view of the stand taken by the Commission I do not think it necessary in this case. I accordingly dismiss the application as having no merit.
S.B. Sanyal, J.
6. I agee to the order now dictated by my learned brother Ali Ahmad, J., but I would like to add few words. On 26th November, 1949, the people of India solemnly resolved to constitute India into Sovereign Democratic Republic. In order to achieve the said end, the institution of the Chief Election Commission was constituted by the founding fathers. The Chief Election Commission has been assigned a very responsible and solemn duty to conduct elections to Parliament and Assemblies which needless to say, is required to be free and fair. Article 324(1) of the Constitution has conferred the powers on the Chief Election Commission to superintend and to issue directions to achieve the said end. Article 324(1) of the Constitution is the reservoir of the powers of the Election Commission to get election conducted in a purest manner. No specific law, rule or regulation is further required to be conferred for exercise of those powers. The directions issued for the said purpose is meant to be respected and obeyed. Whether the directions issued are directory or mandatory is beside the point. The Court reserves its opinion on this for an appropriate case. Suffice it to say that disobedience of lawful directions may lead to a break down of constitutional machinery. The direction may be issued for conduct of election as well as preparation connected with conduct of election. Imminence of election sets the ball rolling even though the conduct of election starts from the date of the publication of notification under Sections 14 and 15 of the Representation of the People Act. Judicial review is basic structure of our Constitution. Therefore, any authority going haywire can be subdued by Courts. A healthy convention must develop in the country to respect the directions issued from time to time by the Election Commission. In order to effectuate the wishes of the people of India, who solemnly resolved to constitute a democratic republic, it has to be remembered that the office of the Election Commission is one of the most sacred institution under the Constitution since the democracy can only be achieved through proper functioning of the said institution. The office of the Election Commission cannot be viewed to be weak because of no express punitive power conferred upon it for disobedience of its lawful directions. Strength of the power is implicit because the entire edifice of our democratic Constitution is founded upon the proper functioning of this institution. Therefore, all concerned authorities must act in cooperation and consultation with each other in getting free and fair election held. Election must not only be pure, free and fair but it must also appear to be so to the people of India. It is for this reason, all the State Government Officers, staff and for that matter, the citizens of the country must conduct themselves in a manner befitting the spirit and requirements of the Constitution as also the wishes of the people of India, who have resolved to constitute India into sovereign, socialist, secular, democratic republic.
Ram Nandan Prasad, J.
7. While agreeing with my learned brother Ali Ahmad, J. and Sanyal, J., I am briefly stating my own views on the subject.
8. The republican and democratic form of Government is a basic feature of our Constitution as held by the Supreme Court in the famous Keshwanand Bharti case, AIR 1975 SC 1461, and in order to sustain this polity, the Election Commission has been given the solemn responsibility of conducting free and fair election to the Union and State Legislatures. Towards that end, the Election Commission under Article 324 has been era-powered to issue directions and instructions to the State Governments and other authorities mentioned in the Article. The State Government is constitutionally obliged to respect and comply with the instructions issued by the Election Commission and not to disregard or ignore them. When the elections to the State Assembly became imminent, the Election Commission issued its Telex message dated 20th December, 1989 (An-nexure 3) reiterating Us instructions contained in the letter of 26th July, 1989 (Annexure l) and stating that the ban on transfer of officers may be treated as re-imposed. It appears that transfers were made in this State even thereafter in disregard of these instructions, because the very fact that post facto approval of the Commission had to be taken implies that the instructions of the Commission had not been fully complied with. When this fact came to the notice of the Commission, it sent a further Telex message No. 434/1/89/10750 dated 26th December, 1989 (Annexure4) in which it constrained to state as follows:--
"These instructions are also to be treated as in the nature of minimum basic norms of electoral ethics for ensuring free and fair poll. Accordingly any violations of these instructions without clearance from the Commission will be viewed by the Commission as violation of not only Article 324 of the Constitution but also as attempts to interfere with the process of true and fair elections."
9. It is expected that in future the authorities concerned will act with greater caution and circumspection so that such lapses may not occur in future.