ORDER :

1. Since pleadings are complete and learned counsel for the parties are ready to argue the matter, therefore, on their joint request, it is heard finally.

2. This petition is under Article 226 of the Constitution of India questioning the validity of order dated 27.10.2023 (Annexure P/8) passed by the respondent No. 1 shifting the petitioner from the post of State Level Flying Squad, Bhopal to the office of Excise Commissioner, Gwalior (Camp Bhopal) and in his place, respondent No. 3 has been brought from the office of Excise Commissioner, Gwalior (Camp Bhopal). The impugned order has been assailed mainly on two counts: firstly that the impugned order passed by the respondent No. 1 is without any competence and secondly, it is without jurisdiction, therefore, nullity and as such, liable to be quashed.

3. Counsel for the petitioner has submitted that the impugned order has been issued during the currency period of Model Code of Conduct because of election of Legislative Assembly. He has submitted that the said order can be issued only with the approval of Election Commission (for short, ‘the Commission’) but in the present case, letter was issued by the office of Chief Election Commissioner, Madhya Pradesh to the Additional Chief Secretary, State of M.P. Commercial Tax Department on 17.10.2023 (Annexure P/6) asking the authority to conduct an enquiry against the petitioner and submit a report before the Election Commissioner so as to remove the petitioner from the post of In-charge, State level Flying Squad, Bhopal. In pursuance to said letter, on 20.10.2023, a letter (Annexure P/7) was written by Dy. Secretary, Commercial Tax Department, State of M.P. to the Excise Commissioner, Gwalior saying that a letter making a complaint against the petitioner has been received by the office and, therefore, it is requested to conduct an enquiry and submit a report in this regard. A copy of complaint was also annexed with the said letter.

4. Shri Vipin Yadav, learned counsel for the petitioner has submitted that the complaint was made from the office of Congress Committee on 10.10.2023 (Annexure P/5) to the Chief Election Commissioner, Election Commission of India, New Delhi alleging that petitioner has completed three years as In-charge State Level Flying Squad, Bhopal and Model Code of Conduct was in force with effect from 09.10.2023. As per the complaint, petitioner used to be an OSD of the then Excise Minister Shri Jagdish Dewda and, therefore, looking to his near relation with Shri Jagdish Dewda, who is contesting the election as a candidate of Bhartiya Janta Party from Mandsaur City, District Mandsaur and as the petitioner is holding the post of Incharge, State Level Flying Squad which has complete control of the State and as such, it is not expected that petitioner would work fairly and, therefore, to maintain transparency and reasonableness, he be removed from the said post and would be attached to the Head Office at Gwalior. He has submitted that instruction was issued by the Commission only for making an enquiry with respect to the complaint made by the office of Congress Committee and it is for the Commission to take appropriate action on the basis of the report but here in this case, neither any enquiry was conducted nor any report was submitted before the Election Commissioner but under the garb of letter dated 20.10.2023, the respondent No. 1 itself acted upon and issued the impugned order transferring the petitioner and simultaneously, brought respondent No. 3 in his place. He has submitted that it is nothing but a complete mala-fide exercise on behalf of the respondent No. 2, who is the Excise Commissioner and respondent No. 3 is his blue eyed boy and just to accommodate him on the post of the petitioner all this exercise has been done.

5. Counsel for the petitioner has further submitted that respondent No. 2 acted malafidely and without making any enquiry and submitting any report to the Commission got the impugned order