JUDGMENT [ENTITY], J.
1. This writ petition has been filed challenging the impugned transfer, order dated 28.2.2004 (Annexure-1) served upon the petitioner by fax on 3.3.2004, on various grounds including the ground that after issuance of the Model Code of Conduct, issued by the Election Commission of India dated [SECTION].2.2004 (hereinafter called the 'Code'), the State Government was not competent to issue transfer order in respect of petitioner as he would be involved in the forthcoming election process, without prior clearance of the Election Commission even if the order has been issued prior to the issuance of the said Code on 28th February, 2004, for the reason that the Code provided that where the transfer order has been passed but has not been implemented by the said date of issuance, it would not be given effect to without seeking clearance of the Election Commission.
2. Shri [ENTITY], learned counsel for the petitioner has submitted that he prays that the impugned order by which petitioner, an Executive Engineer, stood transferred from Aligarh to Bareilly, be quashed as it has been issued in contravention of the Code.
3. On the other hand, Sri [ENTITY], learned standing counsel appearing for the respondents has submitted that the Code issued by the Election Commission of India does not have any statutory force and it is to be treated like a transfer policy which is not justiceable in the Court of Law and if any employee is aggrieved of the transfer order, he must make a representation before the competent authority for redressal of the grievances. The writ petition is liable to be dismissed.
4. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
5. It is settled law that writ court does not ordinarily interfere against the transfer order unless it is found to be in contravention of the statutory Rules or the transfer order is found to have been passed on mala fides. Even for personal grievance, the Court does not interfere as it is the exclusive domain of the employer to consider the personal grievances of the employee. It is the ultimate decision of the employer as to where and for what period the services of an employee are required. The employee does not have a right to choose his place of posting. Transfer is an incidence of service and no interference is generally required. Transfer policy does not create any legal right in favour of the employee and, thus, the terms thereof cannot be enforced through writ jurisdiction. (Vide [PRECEDENT] ; [PRECEDENT] and [PRECEDENT]).
6. However, in the peculiar facts and circumstances of the case, petition raises substantial question of law as to whether the Code issued by the Election Commission has a statutory force and even if it does not, it requires strict adherence by the State authorities and if State authorities violate the same, whether the Court should enforce the Code issued by the Commission.
7. By virtue of the provisions of [SECTION] of the [ACT], it is the solemn duty of the Election Commission to hold a free and fair election, and in order to facilitate the same, the Commission may require staff etc. to conduct the election. The provision of [SECTION] and [SECTION] of the [ACT], hereinafter called "the Act, 1950", and [SECTION] of the [ACT], hereinafter called 'the [ACT]', empowered the Election Commission to have a requisition of employees of the Union of India and the State Governments. By amendment in [SECTION] of the [ACT], even the staff of local authorities and Government Companies and State Undertakings had also been put at the disposal of the Election Commission for the purpose of holding free and fair election.
8. Relative issues in respect of the power of the Election Commission for holding the election has been considered time and again by the Hon'ble Supreme Court,
9. In [PRECEDENT], a [ACT] Bench of the Supreme Court held that as the Election Commission has complete power of superintendence, it has a power to issue directions for the purpose of holding the election. The Court observed as under :
"2 (a) The [ACT] contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent [SECTION] is a reservoir of power to act for the avowed purposes of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fair play in action in a most important area of the constitutional order, viz., election.
It is incomprehensible that a person or body can discharge any functions without exercising powers. Powers and duties are integrated with function
[SECTION] is thus couched in wide terms. Power in any democratic set up, as is the pattern of our polity, is to be exercised in accordance with law."
10. In [PRECEDENT], the Hon'ble Apex Court held that the directions issued by the Election Commission require strict adherence and Commission was held to have competence even of restricting the hours of using loudspeakers fitted on vehicles for electioneering purposes. Their Lordships explained the scope of Model Code of Conduct issued by the Election Commission observing that it is issued considering public good and it cannot be said to be unrelated or the powers of the Election Commission under [SECTION] and the directions issued by the Election Commission should not be interfered ordinarily.
11. In [PRECEDENT], the Hon'ble Apex Court had an opportunity to examine the scope of [SECTION] of the [ACT] read with the [ACT]. The Court held that every direction issued by the Commission cannot be put at par to statutory rule but it requires strict adherence. The Court observed as under :
"While construing the expression 'superintendence, direction and control' in [SECTION], one has to remember that every norm which lays down a rule of conduct cannot possibly be elevated to the position of legislation or delegated legislation. There are some authorities or persons in certain grey areas who may be sources of rules of conduct and who at the same time cannot be equated to authorities or persons who can make law, in the strict sense in which it is understood in jurisprudence. A direction may mean an order issued to a particular individual or a precept which many may have to follow. It may be a specific or a general order. One has also to remember that the source of power in this case is the [ACT], the highest law of the land, which is the repository and source of all legal powers and any power granted by the [ACT] for a specific purpose should be construed liberally so that the object for which the power is granted is effectively achieved. Viewed from this angle it cannot be said that any of the provisions of the Symbols Orders suffers from want of authority on the part of the Commission, which has issued it."
12. In [PRECEDENT], the issue was agitated before the Hon'ble Supreme Court as to whether the Election Commission had a power to issue a direction to send the employees of the [PRECEDENT] for election purpose. Interpreting the various provisions of the Statute, particularly, [ACT], the Hon'ble Supreme Court held that as the employees of the [PRECEDENT] were not the employees of the Union of India and that of the State, they could not be directed to be involved in the election process. However, the Court observed as under :
"We assume that the powers of the Election Commission under [SECTION] are plenary. Therefore, the Election Commission may issue any direction in the matter of conduct of elections Therefore, on a request by the Election Commission the services of those Government servants who are appointed to public services and posts under the Central or State Governments will have to be made available for the purpose of election. When the [ACT] came into force the services of these officers were readily available. Of course, there were also local authorities and the services of the employees of the local authorities were also available. That is why [SECTION] of the 1951 Act provides that on request from the Regional Commissioner or the Chief Electoral Officer of the State, the local authority of the State shall make available to any Returning Officer such staff as may be necessary to carry out the duties in connection with an election."
13. To overcome the difficulty by the interpretation of the statutory provisions of the Hon'ble Supreme Court in the case of [PRECEDENT] (supra), the provisions of [SECTION] of the [ACT] stood amended with effect from 23rd December, 1997 and by the amendment, the employees of the local authorities, Universities, Government Companies and public undertakings could also be involved in the election process.
14. In [PRECEDENT], the Court held that the [ACT] had made the comprehensive provisions under [SECTION] of the [ACT] enabling the Commission to superintendent and control over the conduct of election and to issue any direction in connection with the election.
15. In Union of India v. Association for Democratic Reforms and Anr., (2002) 5 SCC [SECTION]4, the Hon'ble Supreme Court reiterated the same view observing as under :
"It is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that of the Legislature, and where there is inaction by the Executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations to provide a solution till such time the Legislature acts to perform its role by enacting proper legislation to cover the field."
The Court further observed as under :
"The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word 'elections' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps In case where law is silent, [SECTION] is a reservoir of power to act for the avowed purpose of having free and fair election."
16. In view of the above, it can be summarised that the instruction issued by the Election Commission, though executive in nature, as is issued in performance of a legal and sovereign function and looking to the purpose for which the powers are conferred, the mandate issued by the Election Commission is binding upon the State. More so, once the State Government adopts the Code, it is not open for its instrumentalities to violate the same as it would amount to colourable exercise of power or it would be arbitrary and unreasonable not to act in consonance with the directions issued by the Commission. Vide [PRECEDENT].
17. In [PRECEDENT], a Division Bench of this Court has taken a similar view observing that the powers to issue Code by the Election Commission has been drawn from the provisions of [SECTION] of the [ACT], thus, the State or its instrumentalities are under obligation to observe the same.
18. The Code itself provides for exceptions in case, State or its instrumentalities feel difficulty and it is necessary in administrative exigency to transfer a person who can be involved in election process after issuance of the Code of Conduct by the Election Commission. Clause 7 of the Code dated [SECTION]th February, 2004 reads as under :
"In those cases where transfer of an officer is absolutely necessary on account of administrative exigencies, the concerned State Government may with full justification approach the Commission for prior clearance."
19. Even for those persons where the orders of transfer have been passed but could not be implemented, the Code provided vide Clause 5 that it shall not be implemented without permission of the Commission. The said clause reads as under :
"The transfer orders issued in respect of the above categories of officers prior to the date of announcement but not implemented till date should not be given effect to without obtaining specific permission from the Commissioner in this regard."
20. Thus, the Code is to be observed but in order to facilitate the function of the State, certain exceptions have been carved out in the Code itself and State Government can implement the transfer orders, etc. after taking prior clearance from the Commission.
21. The Code does not relate to every employee of the State Government. It is concerned only with those persons who can be involved in election process as Clause 4 of the Code reads as under ;
"The Commission directs that there shall be a total ban on the transfer of all officers/officials connected with the conduct of the elections. These include but are not restricted to :
(i) The Chief Electoral Officer and Additional/ Joint/ Deputy/ Chief Electoral Officers ;
(ii) Divisional Commissioners
(iii) The District Election Officers, Returning Officers, Assistant Returning Officers and other Revenue Officers connected with the Conduct of Elections ;
(iv) Officers of the Police Department connected with the management of elections like range IGs and DIGs, Senior Superintendents of Police and Superintendents of Police, Sub-Divisional level Police Officers like Deputy Superintendents of Police and other Police Officers who are deputed to the Commission under [SECTION] of the [ACT]."
22. Thus, it is apparent from the aforesaid clause that the list mentioned therein is not exhaustive, it is rather illustrative and it is for the State Government to consider and for the Election Commission to examine as to whose services are required in the election for the reason that after amendment in [SECTION] of the [ACT], the services of the employees of the Government Companies, Public Undertakings and local bodies can be involved in the election process.
23. Transfer of the employees whose services are required in the electioneering process, may be restrained/regulated by the Election Commission in- order to conduct the election free and fair, for the reason that a political party in power, may post the officers of its liking at a particular place for a definite purpose of some unlawful gain in the election and in order to curb such a situation/possibility, it may be necessary for the Election Commission to issue such kind of direction, and once such a direction is issued, it requires strict adherence. It is not that every direction issued by the Commission requires observance rigourously but where the direction is being issued to ensure free and fair election, all other authorities are under obligation to give strict adherence to the same.
24. If the instant case is examined in the light of the aforesaid settled legal proposition, the order impugned had been passed on 28.2.2004 but it came to the knowledge of the petitioner employee for the first time on 3rd March, 2004, therefore, the question of implementation/execution of the transfer order dated 28.2.2004 could not have arisen prior to the issuance of the Code of Conduct on [SECTION]th February, 2004. Thus, the transfer order cannot be given effect to without seeking clearance of the Election Commission as provided under Clause 5 of the said Code. In case it is necessary for the State Government in administrative exigency that the petitioners services are required at a different place, the State must approach the Election Commission for clearance of such transfer before it can be given effect to.
25. Therefore, it is necessary for the State Government to take prior clearance as to whether services of the Executive Engineer in the department of local bodies Nagar Nigam are required in the election process and, if yes, whether the Election Commission is willing to give its clearance for transfer in a particular case. In case, their services are not required in the election and it is clarified by the Election Commission, the transfer order shall be given effect to and the petitioner is directed to join at the transfer place.
26. Since in the case at hand the order was before clearance from the Election Commission, thus, in view of the above, petition succeeds and is allowed. The impugned transfer order shall not be given effect to without seeking clearance of the Election Commission.
27. In the facts and circumstances of the case, there shall be no order as to costs.