STATE OF MAHARASHTRA Vs. SONYABAPU BANSI DESHMUKH

JUDGEMENT

(1.) This batch of writ petitions raises challenge to the common judgment of the Maharashtra Administrative Tribunal (Tribunal, for short) dtd. 19/07/2024 whereby the learned Member of the Tribunal decided various Original Applications that had been preferred by police personnel in the rank of Police Inspector, Assistant Police Inspector and Police Sub-Inspector who had been transferred by the order dtd. 26/02/2024 in view of the directives issued by the Election Commission of India (ECI, for short). The learned Member of the Tribunal was of the view that the transfer orders that had been issued in view of directives of the ECI would lose their efficacy at the conclusion of the general elections and hence the transfers effected on that basis were in the nature of deemed deputation of the concerned police personnel during that period.

(2.) On 21/12/2023, the ECI issued communication to the Chief Secretary of all States and Union Territories as well as respective Chief Electoral Officers stating therein that no officer connected directly with elections should be permitted to continue in the current revenue district of posting if he/she was posted in her/her home district and if he/she had completed three years in that district during the last four years or would be completing three years on/or before 30/06/2024. The Additional Director General of Police, Maharashtra State in the light of aforesaid communication dtd. 21/1/2023 issued by the ECI and communication dtd. 22/02/2024 issued by the Chief Election Officer, Maharashtra State, issued transfer orders to about 73 police personnel in exercise of powers conferred under Sec. 22-N(2) of the Maharashtra Police Act, 1951 (for short, Act of 1951). It was stated that these transfers were effected in public interest as well as on account of administrative exigencies. Some of the transferees being aggrieved by the order of transfer approached the Tribunal and filed separate Original Applications. The learned Member of the Tribunal after hearing the concerned parties held that the transfer orders were perishable in nature and that they did not have lasting effect at the conclusion of the elections by the ECI or the State Election Commission. The State of Maharashtra through its Home Department being aggrieved by the said common judgment has preferred these writ petitions.

(3.) Dr. Birendra Saraf, learned Advocate General in support of the challenge as raised to the impugned judgment submitted that the learned Member of the Tribunal committed an error in holding that the orders of transfer issued pursuant to the directives issued by the State Election Commission on 21/12/2023 were perishable in nature and that they were effective only till the time election process was ongoing. The orders of transfer having been issued in exercise of the powers conferred by Sec. 22-N of the Act of 1951 did not result in any deemed deputation of the transferees as held by the learned Member. He referred to the directives issued by ECI dtd. 21/12/2023 and submitted that in accordance therewith and with a view to comply with such directives issued by the ECI in exercise of the authority conferred by Article 324 of the Constitution of India, the transfer orders had been effected. The issues and grounds of challenge raised by the transferees had been considered in detail by the Division Bench in Mahendra Eknath Mali vs. State of Maharashtra, 2018 (5) Mh.L.J. 307. It had been held in clear terms that there was no question of any deputation in view of such transfer during the period when the election process was ongoing. The Division Bench had considered the judgment of the Karnataka High Court in Election Commission of India and Others vs. State of Karnataka and Others, 2013 CJ (Kar) 595 and had distinguished this aspect. Despite aforesaid, the learned Member of the Tribunal did not follow the ratio of the said judgment in Mahendra Eknath Mali (supra) and instead sought to rely upon the judgment of the Karnataka High Court referred to above. There was no question of applicability of Sec. 28A of the Representation of the People Act, 1951 and the orders of transfer could not have been interfered with on that count. The Home Department was within its jurisdiction in effecting transfers and it was not stated therein that transfers were to remain effective only during the period when the election process was ongoing. The power conferred by Sec. 22-N of the Act of 1951 had been exercised in public interest and good faith pursuant to the directives issued by the ECI. As a result of the impugned judgment the entire exercise undertaken by the Home Department was set aside for reasons that were not sustainable in law. To substantiate his submissions the learned Advocate General also placed reliance upon the decisions in Babu Barkya Thakur vs. State of Bombay and Others, AIR 1960 SC 1203, Regina vs. Kelly (Edward) [1999] 2 WLR 1100, Ranji Kumar vs. Suresh Kumar Malhotra and Another, (2003) 5 SCC 315 and State of Maharashtra and Another vs. Anuradha Subhash Dhumal, 2022 (2) Mah LJ 669. It was thus submitted that the common judgment deciding various Original Applications was liable to be set aside and the transfer orders dtd. 26/02/2024 ought to be implemented in its true letter and spirit.