The main legal point established in the judgment is that the Election Commission's control and superintendence extend only to officers deputed for election duty or deemed to be on deputation to the Commission. The Election Commission was not authorized to give any direction to the State Government regarding the posting or transfer of the petitioner.

Petitioner challenges the direction issued by the Chief Election Commission to the 2nd respondent on the eve of bye-election to 65 Guruvayur Assembly constituency. Petitioner is a senior I.P.S. officer. He belongs to 1961 batch of direct recruits to Indian Police Service. He has worked in various capacities. By Government order dated 22-4-1994, petitioner was promoted to the grade of DG and IGP with effect from 1-5-1994. The appointment of the petitioner was against a retirement vacancy. At the time of this appointment, an Original Application filed by another senior IPS Officer was pending before the central Administrative Tribunal, Ernakulam Bench. Petitioner therein claimed that he was entitled to be promoted to the rank of DGP with effect from 1-5-93. The central Administrative Tribunal passed an order to the effect that the appointment to the post of DG and IGP shall be with previous permission of the Tribunal. As the order of appointment of the petitioner as DG and IGP was made without such previous permission of the Tribunal it was brought to the notice of the Tribunal. The Tribunal passed an order permitting the State Government to make appointments in accordance with law and, thereafter 2nd respondent passed Ext. P4 order on 27-4-94 whereby the petitioner was promoted and posted as DG and IGP with effect from 1-5-94 in the retirement vacancy of the then DG and IGP. Another senior officer was also promoted to the grade of DG and IGP.

2. The Election Commission declared bye-election to 65 Guruvayur Assembly Constituency as per notification dated 26-4-94. On 3-5-94, 2nd respondent received a communication from the Election Commission to the effect that the appointment of the petitioner as DG and IGP shall be immediately cancelled and status-quo ante is to be restored. Second respondent was directed to comply with the direction before 17.00 hours on 5-5-94. Petitioner came to know of this communication and he has challenged the direction issued by the Election Commission as it adversely affects the rights of the petitioner.

3. On behalf of the first respondent a counter-affidavit is filed wherein it is stated that the Government Order dated 22-4-94 was quashed by the central Administrative Tribunal, Ernakulam Bench on 25-4-94 and, therefore, the order dated 22-4-94 has no effect. The formal valid order appointing the petitioner to the post of Director General and Inspector of Police was issued only on 27-4-94 by which time not only had the announcement of bye-election to 65 Guruvayur Assembly Constituency been made but formal notification had also been issued on 25-4-94. Detailed instructions have been issued by the Election Commission of India to the Executive Governments at the Centre and the States to adhere to certain norms during the period of election. These instructions were issued under Art.324 of the Constitution. The officers posted in the cadre of DGP and IGP are directly connected with the election and are subject to the control of the Commission. Appointment of the petitioner to the post of DGP/IGP was made by the State Government on 27-4-94 much after the election to 65 Guruvayur Assembly Constituency was made known to the Government and the Election Commission of India issued direction under Art.324 with a view to ensure free and fair election.

4. On behalf of the 2nd respondent the Chief Secretary, Government of Kerala has filed an affidavit slating the circumstances under which the petitioner was posted as DG and IGP. It is alleged that the petitioner is entitled to get promotion to the post of DG and IGP. It is also alleged that the action of the Government is perfectly legal and there was no intention or attempt on the part of the 2nd respondent to transfer an officer from his post after the commencement of the election. The appointment of the petitioner was a routine affair which could not have been postponed for administrative reason and in public interest. The ban on transfer orders after th