KANHAIYA PRASAD SINHA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was posted as Subdivisional Officer of Muzaffarpur 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 Art.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-I a letter dated 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:-

(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 Sub-divisional 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 Sub-divisional 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 Sub-divisional 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.