Chandu Das Verma v. State of Chhattisgarh

S.B. : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA. J. Writ Petition (Si No.2362/2013 Petitioner Chandu Das Verma Respondents State of Chhattisgarh and Ors. Versus Appearance: Shri Mateen Siddiqui, counsel for the petitiojaer. Shri Y.S. Thakur, Dy. Advocate General for the State. ORAL- ORDER (Passedon 8.8.2013) Heard.

#1. By this petition, the petitioner has called in question the correctness and validity of order dated 27.7.2013 (Annexure P-1) by which he has been transferred.

#2. Learned counsel for the petitioner argued that transfer of the petitioner is illegal being in contravention of provision contained in Section 1 3CC of the Representation of the People Act, 1950 (for short "the Act of 1950") as "the also Section 28 A ofthe Representation of People Act, 1951 (for short Act of 1951").

#3. According to learned counsel for the petitioner, the petitioner having been appointed under Part- IV of the Act of 1951 for the conduct of elections is deemed to be on deputation to Election Commission and the State Govt. could not have transferred the petitioner by impugned order without the consent of the Election Commission. Therefore, the transfer is illegal. It is also argued that as per para 2.12 of the transfer policy dated 7th June, 2012 (Annexure P-3), transfer could be made only up to 15 percent under -s ^ssss---'' -2- approval of the Minister of the Department and 5 percent under approval in coordination, to transfer those who have remained posted at the same place for long time. But, the petitioner's transfer is in violation of the s.aid policy, because the petitioner was posted at Janjgir-Champa only in the month of December, 2010 and he has been transferred to Bijapur district within 2 and % years. Therefore, transfer of the petitioner, without allowing him to complete normal tenure of three years, is arbitrary.

#4. Learned counsel for the State submitted that unless notification of election is issued by the Election Commission of India and petitioner is appointed under statutory order under Part-IV of the Act of 1951, Section 28 A of the Act of the Act 1951 would not be attracted. He further submits that in view of the provision contained in Section 13 CC of the Act of 1950 also, the petitioner can neither be said to be an officer involved in the work of census nor for conduct of election in the absence of there being any declaration of election. Therefore, in these circumstances, there is no requirement of seeking prior approval or consent of Commission of India. It is also submitted that even circular dated 14th May, the Election 2013 (Annexure P-4) of the Election Commission does not show that the transfer of the petitioner is in violation of the said circular. On the other transfer of the petitioner is in view of the direction issued by the hand, Election Commission because for the purpose of calculating 3 years of period, cutoff date shall be 31st December, 2013. Therefore, the petitioner is required to be transferred under a direction ofthe Election Commission.

#5. I have heard learned counsel for the parties and perused the records. 6, The main thrust of the submissions of learned counsel for the petitioner is based on work distribution memo issued on 25.7.2013 (Annexure P-6) issued by the Colfector, Janjgir-Champa. The said distribution of work cannot be said to be appointment of the petitioner under any of the provision contained in Part-IV oftheAct of1951. 'S iliiS3;7' :^?i!^EBiSti!FiES@;;'iT!SS^@®^^^ram c^ ^¥l..)l i '<k'<»sa:C^ '"^'teSs^' ^ ^ -3-

#7. The entrustment of duty as per the work distribution memo, can at the most, be said to be reorganizing the affairs of administration for the work of election going to be held soon in the State. However, that by itself, cannot be said to be case of an officer employed in connection with the preparation or correction of the electoral election under Section 13 CC of rolls for, and the conduct of the Act of 1950. Deputation under deeming fiction would arise only in those cases which are specifically covered under Section 13 CC and not otherwise. Similarly, the petitioner cannot be said to be appointed under Part IV of the Act of 1951 for the conduct 6f eleetions as'envisaged under Section 28 A of the Act of 1951, because the process of conduct of election will not commence until a notification in that regard is issued by the Election Commission of India in exercise of its powers under the Act. Therefore, the petitioner cannot be deemed to be on deputation. Therefore, whether it be under Section 13 CC of the Act of 1950 or 28 A of the Act of 1951, the distribution of work does not amount deemed deputation so as to say that by such distribution of work, petitioner is now subject to control, superintendence and discipline of the election.

#8. The transfer ofthe petitioner, as stated by learned counsel forthe State, is result of direction issued by the Election Commission of India on 14th May, 2013 (Annexure P-4). has clearly observed that since the transfer season is in the month of May In that direction, the Election Commission of India and June in most of the States, the Conpmission would like to advise the State Governments that the policy of the transfer of the officer when he has served for 3 years or more at a place should be taken into account while transferring "the officers likely to be involved in conduct of fprtbcoming geh'eral election to the Legislative Assembly of the State (which includes the State of Chhattisgarh also). What is worth noticing is that the Election Commission has prescribed in that very circular that cutoff 'S EU^aLy-t-^iT^ni^TQ'^ n-^ ^^J -4- date for the purposes of calculating 3 years period in the context of ensuing election shall be 31st December, 2013. In the present case, on petitioner's own showing, the petitioner was posted as Deputy Collector, Janjgir-Champa w.e.f. 9.12.2010. Therefore, he would be completing more than 3 years taking 31st December, 2013 as taking the petitioner's posting in Janjgir-Champa, cutoff date. Therefore, the petitioner would certainly complete more than 3 years as on 31st December, 2013. Therefore, the transfer ofthe petitioner, appears to be in compliance of the direction of the Election Commission and not in violation of any ofthe directives ofthe Election Commission.

#9. The other contention with regard to frequent transfer cannot be accepted. The petitioner occupies a sensitive administrative post Administrative Service. He remained posted at the present place of posting at Janjgir-Champa since 9th December, 2010 and transfer ofthe petitioner by impugned order dated 27.7.2013 cannot be said to be so frequent as to in the State warrant any interference. Contention that ordinarily the petitioner should have been allowed to continue 3 years posting cannot be pressed info service as a ground to assail correctness of transfer order, because the transfer guidelines are not enforceable in the Court of law. It is well settled legal proposition that there being any illegality or malafides, this Court would be loath to Fnterfere with the transfer. For the in the absence of said reason, other stated grounds of violation also do not provide basis to interfere with the transfer order. Otherwise also, transfer order on the face of it, clearly suggest that in the matter of transfer/posting, approval in co- ordination has been obtained.

#10. The petition, therefore, has no merit. The petition is liable to be dismissed and is accordingly^dismissed. _____ Sd-/ ManindraMohanShrivastava Judge -s li^BBIESE^im^^E