State Government Can't Transfer Officers Engaged In SIR Work Without Prior Approval Of Election Commission: Chhattisgarh HC

A Division Bench of the Chhattisgarh High Court comprising Chief Justice Ramesh Sinha and Justice Ravindra Kumar Agrawal held that the transfer of an officer engaged in the Special Intensive Revision (SIR) of electoral rolls without prior approval of the Election Commission violates Section 13CC of the Representation of the People Act, 1950, and therefore, is arbitrary. Background Facts The appellant was posted as Chief Executive Officer at Janpad Panchayat Berla, District Bemetara. The respondent was an employee of the Panchayat and Rural Development Department, State of Chhattisgarh. He was holding the post of Block Development Officer at the same Janpad Panchayat. The respondent was also given the additional charge of In-charge Chief Executive Officer. Later, he was transferred to Janpad Panchayat Berla as In-charge Chief Executive Officer. Again he was transferred to Zila Panchayat Bemetara as In-charge Assistant Project Officer. Aggrieved by this transfer, he filed a writ petition. It was argued by the respondent that the Collector-cum-District Election Officer, Bemetara, had appointed him as Additional Assistant Electoral Registration Officer. Therefore, he was engaged in the Special Intensive Revision (SIR) of electoral rolls. It was further argued that the Chief Electoral Officer, Chhattisgarh advised the Chief Secretary that officers engaged in SIR work should not be transferred during the revision period without prior approval of the Election Commission of India. It was argued that he had been subjected to frequent transfers. The Single Judge allowed his petition and set aside the transfer order. Aggrieved by the single judge's decision, the appellant filed the intra-Court appeal before the Division Bench of the Chhattisgarh High Court. It was argued by the appellant that the transfer order had already been fully implemented. The respondent was relieved from his post and the appellant joined at Janpad Panchayat Berla. Further, the digital signatures in official records, status reports and last pay certificate were updated to reflect the change. It was further submitted that the appellant was given the work of Electoral Registration Officer by the Election Commission and was successfully carrying out the Special Intensive Revision of electoral rolls. The appellant contended that once a transfer order has been executed and both officers have assumed charge, it should not be interfered with. On the other hand, it was argued by respondent and the State that the Single Judge upon due consideration of the material on record and the statutory provisions governing the field, had rightly allowed the writ petition. Findings of the Court It was noted by the court that Section 13CC of the Representation of the People Act, 1950, provides that any officer or staff employed in connection with the preparation, revision, and correction of electoral rolls shall be deemed to be on deputation to the Election Commission during the period of employment and shall be subject to its control, superintendence, and discipline. It was further observed that the Chief Electoral Officer, Chhattisgarh directed the Chief Secretary that officers functioning as Roll Observer, District Electoral Officer, Deputy District Electoral Officer, Electoral Registration Officer, Assistant Electoral Registration Officer, Booth Level Officer Supervisor, and Booth Level Officer should not be transferred during the SIR period without prior permission of the Election Commission of India. The Chief Secretary issued the suitable instructions. It was further observed that respondent was appointed as Additional Assistant Electoral Registration Officer and was engaged in SIR work. Therefore, he was subject to the control and superintendence of the Election Commission. It was further observed that the Article 324 of the Constitution provides for the superintendence, direction, and control of elections in the Election Commission of India. Further, free and fair elections form part of the basic structure of the Constitution. The decision of the Patna High Court in Kanhaiya Prasad Sinha v. Union of India was relied upon wherein it was held that the State Government is constitutionally obliged to respect and comply with the lawful directions issued by the Election Commission. It was held by the Division Bench that the transfer of an officer engaged in SIR work without prior approval of the Election Commission cannot be sustained. Further, the contention that the transfer order had already been implemented does not cure the lack of jurisdiction. It was further held that an order passed in contravention of law cannot become valid merely because it has been acted upon. It was held by the Division Bench that the Single Judge rightly concluded that the transfer of respondent during his engagement in SIR work was unsustainable in law. Consequently, the ...

State Government Can't Transfer Officers Engaged In SIR Work Without Prior Approval Of Election Commission: Chhattisgarh HC

Namdev Singh

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