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IN THE HIGH COURT OF ALLAHABAD
RAJESH SINGH CHAUHAN, J.
Ravi Prakash Mishra – Petitioner
Versus
State of U.P. and Others – Respondents
Writ (A) No. 5951 of 2024
Decided On : 02-08-2024
ELECTIONS - TRANSFER OF EMPLOYEES - MODEL CODE OF CONDUCT, PARA-6 (KA); R.K. MITTAL VS. STATE OF UTTAR PRADESH, 2004 SCC ONLINE ALL 1772 - The court emphasized the necessity of obtaining prior permission from the State Election Commission for transferring employees during the election notification period, as outlined in the Model Code of Conduct. The court interpreted that any transfer order issued without such approval is deemed non est, thereby invalidating the transfer and ensuring adherence to the principles of free and fair elections.
Fact of the Case:
The petitioner, an Assistant Development Officer (Panchayat), challenged a transfer order issued by the District Panchayat Raj Officer, Gonda, during the election notification period, arguing that it was illegal as it lacked prior approval from the State Election Commission.
Finding of the Court:
The court found that the transfer order was issued without the necessary permission from the State Election Commission, violating the Model Code of Conduct. It concluded that such an order is non est in law and must be quashed to uphold the integrity of the election process.
Issues: Whether the transfer order issued during the election notification period without prior approval from the State Election Commission is valid.
Ratio Decidendi: The court held that any transfer of employees during the election notification period requires prior approval from the State Election Commission to ensure free and fair elections. The absence of such approval renders the transfer order invalid.
Final Decision: The court quashed the impugned transfer order and directed the petitioner to continue serving at his original post, while also allowing the other affected party to return to their previous position.
JUDGMENT :
RAJESH SINGH CHAUHAN, J.
1. Heard.
2. This Court has passed order dated 31.07.2024, which reads as under:
2. Sri Yoyekwar, learned counsel for the petitioner has assailed the impugned transfer order dated 20.07.2024 (Annexure No. 1), passed by the District Panchayat Raj Officer, Gonda, whereby the petitioner who is serving on the post of Assistant Development Officer (Panchayat), has been transferred from Vikas Khand Wazirganj to Vikas Khand Mujehna, District-Gonda on the ground that the State Election Commission has notified election of Panchayat on 15.07.2024 (Annexure No. 2) and election for Block Wazirganj is to be conducted pursuant to the election notification.
3. As per Sri Royekwar, after the notification having been issued by the State Election Commission, the administrative authority cannot transfer an employee from one place to another place even in the same district without taking prior permission from the State Election Commission.
4. On being confronted learned counsel for the State Election Commission as to whether any permission/ approval has been given transferring the petitioner and the same query has been put from Sri Sandeep Sharma learned counsel for the State as to whether the authority concerned has taken consent from the Election Commission, both the counsels appearing for the opposite parties have requested that some short time may be given them to seek specific instructions on that point.
5. List/ put up this case on 02.08.2024 as fresh. On that date, this matter may be taken up immediately after fresh cases.
6. Till the next date of listing, the status-quo as on today i.e. 31.07.2024, shall be maintained.”
3. Sri S.M. Singh Royekwar, learned counsel for the petitioner, has filed supplementary affidavit enclosing true copy of the Model Code of Conduct issued by the Election Commission, the same is taken on record.
4. Learned counsel for the State Election Commission and learned Standing Counsel, both, have stated that before issuing the impugned transfer order dated 20.07.2024 no approval/ permission has been taken from the State Election Commission.
5. Sri S.M. Singh Royekwar has drawn attention of this Court towards para-6 (Ka) of the Model Code of Conduct, which categorically provides that during the currency period of election notification, no employee of the area would be transferred/ appointed/promoted and if such transfer etc. is necessary on account of compelling circumstances, prior permission/ approval from the State Election Commission would be required.
6. Sri Royekwar has drawn attention of this Court towards the decision of the Division Bench of this Court in re; R.K. Mittal Vs. State of Uttar Pradesh and another, 2004 SCC Online All 1772, wherein the Division Bench has observed that transfer of an employee whose services are required in the election process for conducting the election smoothly, such exercise shall be regulated by the Election Commission in order to conduct the election free and fair; relevant para-23 thereof reads as under:
The necessity of obtaining prior permission from the State Election Commission for employee transfers during election periods is crucial to maintain the integrity of the electoral process.
Transfer orders must adhere to statutory guidelines and cannot be executed with mala fide intentions, as such errors warrant judicial intervention.
The implementation of transfer orders after the Model Code of Conduct's enforcement requires prior approval from the Election Commission to be lawful.
Transfer orders in public service are valid unless proven mala fide or in violation of statutory provisions.
Transfer orders for employees engaged in election duties must adhere to the Election Commission's restrictions, as non-compliance renders such orders invalid.
Point of Law : Impugned directive of Election Commission is valid as it does not discriminate between different officers but a uniform directive has been issued for all officers who have completed fo....
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