4F^ HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 943 of2007 PETITIONEi Tapaa Kumar Nask State ofCfahattisgarh & Others. -^ Po.st for order on l^ May, 2007 ^-.. Sd/- Satish K. Agnihotri Judge *^t 'NTFi"- WMT PETITION (S) No. 943 of2007 Tapan Kumar NMkar, S/o Late Shambhu Lal Naskar, Aged about 53 years, R/ A-32, Vashuadhara Nagar, Rine Road No. 2, Bilaspur (C.G.) VERSUS : 1) State of Clihattisearh. - Throu^i the Secretan', Water Resources Departnient,, D.K.S. Bhavaii, Raipur (C.G.) 2) The Joint Seeretary, Water Resources Department, State of Chhattisgarh, D.K.S. Bhavan, Raipur (C.G.) 3) Shri A.K.Shrivastava Sub-Divisional QfBcer, Hasdeo Sub Miner Sub -Division No. 4, Nawasarh, Distt. Janjsir-Champa (C.G.) WRTT PETmON UNDER ARTICLE 226 OF THE CONSTmjTION OF INDIA. Shri P.Diwakar, Sr. Advocate with Shri K.K.Gupta, Advocate fortfae petitioner. Shri V.V.S.Moorthy, Dy. Advocate General for the State/'respondents 1 aid 2. Shri P.Mishra, Advocate for the respondent no.3. (Passed on ...... /.^.day of May, 2007) 1. The petitioner, being aggrieved by the transfer order dated 09.02.2007 CAnnexure P/3) has filed tfais petition questiocine the lesalitv and validitv offhe said impuaned order. 2. The indisputable facts, iii nutshell, are that the substantive post offhe petitioner is Assistant Engineer. Vide order dated 31.12.2006 lAnnexure P/l) fhe petitioner was given additional charge of Executive Engineer, Hasdeo Caaal Management Division, Janjgir, with financial and other administrative powers. Thereafter, vide order dated 8.12.2006, oae Shri S.R.Minj, Assistant Engineer (Rupan), was transferred from the ofBce of the Executive Ensineer, Mini Mata Bans.o Canal Division, Sakti to Sub Division, Mini Mata Banso Canal Sub Division No. 17, Bilaspur in place of the petitioner. The petitioner was given the assignment of the ii-1 '^ Executive Eneineer as granted earlier vide order dated 31.10.2006 full as Incharse, Executive Engineer. By the impuaied order dated 9.2.2007, the petitioner was transferred as Incharge, Executive Engineer, Hasdeo Canal Maaagement Division, Janjgir to Sub Division Hasdeo Sub Division No. 4, Nawagai-h in place ofrespondent no. 3, who was given fhe charge of Executive Engiiieer, Hasdeo Canal Management Division, Janjgir in place ofthe petitioner. The petitioner has impugned the transfer order on fhe ground fhat the petitioner could not be transfen-ed to any other place and this order is colourable exercise of power to accominodate respondent no. 3 at his place. The next contention of Shri P.Diwakar, ieamsd senior counsel appearmg for the petitioner is that during the period when the Code of Conduct was imposed on account of Jal Upbhokta Sansfha Election, the impuened order could not have been passed and as such tlie same is bad 4. Shri V.V.S.Moorthy, leamed counsel appearing for tfae State/respondent 1 and 2, per contra, submite that by the mipuaied order, the service ofthe petitioner has not been affected. Tlie petitioner's substantive post is Assistant Eagineer aadthe petitioner was holdingthe charge ofExecutive Engineer. Thus, the petitioner has not acquired aiiy rieht to the said post. With re.eard to the election, leamed counsel submits tfaat fhere was no Code of Conduct during that period as fhe election of Jal Upbhokta Sansthaa has nothing to do with the transfer and posting of t5ie ' employees. 5. Shri P.Mishra, leamed coimsel appeariag for fhe respondent no. 3 adopts the submissions ofthe State. 6. It is true that as per the letter dated 11.01.2007, there was a Code of Conduct applicable from 15.01.2007to 11.02.2007 (Annexure P/5). The Code of Conduct - Do's and Dont's, issued by the Election Commission of India vide memo dated 7.01.2007 wifh regard to the transfer and posting ofofficials makes it clear that there is a ban oa transfers ofall fhe of&cials and ofBcers connected with tfae conduct of election. In the present election which was related to the Jal Upbhokata Sansfha, flie petitioner and the respondent uo. 3 were aot connected with the conduct ;i-l ofthe election. The relevant portion ofthe Code ofConduct - Do's and 's. issues bv the Election Cotmnissioii oflndia is quoted as under: On Transfers and postine ofofficials: The Conniussion directs that there shaU be a total ban on the trai^fer of aB officers/officials of the el< (i) (ii) (iii) (iv) (vi; (vii) (viii) (ix) and These include bat are not restricted to:- The Chief Electoral Offieer Additional/'JomVDeputy CliiefElectoral Officers; Divisioaal Conanissioners; The Distriet Electioii Offieers, Retummg Officere, Assistant Retuming Officers and other Reveirae Officers connected with the Conduct of ^lections; OfBcers oftlie police Depailment comiected with the maaagement of elections like range IGs aad DIGs, Semor Superiatendents of Police and Superintendents of Police, Sub-divisional level Police OfHcers like Deputy Superiiitendent of Police and other Police Officers who are deputed to the Commission uader Section 28A of tfae Representation ofthe People Act, 1951; Ofher ofScers drafted for election works like sector and zonal officers, Transport cell, EVM cell, Poll material proeurement & distribution cell, management ofelection in the State, are also covered by tliis direction. The transfer orders issued in respect ofthe above categories of officers prior to the date of announcement but not implemented till the time wfaen model code came into effect shouid not be given effect to without obtaining specific penmssion fromtlie Coimiiission. This ban shall be effective tiil the completion of tfae election process. In those cases where transfer of an officer is considered necessaiy on account of admiaistrative exisencies, the State Government may, with fall justificatioii, approach the Commission for prior clearaace. No appointments or promotioiu GovenuneBt / rubBc Undertaldnas shaB be made durmg tMs period, without prior clearance ofthe Commission." 7. I have heard the leamed counsel appearing for fhe parties, perused the pleadinss and tiie documents appended thereto. It is indisputablv admitted by the parties that the substantive post ofthe petitioner and the respondent no. 3 is Assistant Eneineer. 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Ag -jssuiSug SAi^nosxg 'sS'jBqouj jo ss'reqo psSpsg nnj: asAig SBM sq 'jsgBsjsqi puB iprej ui unq ot jousdns si qoiqM jssmsug sApnosxg jo sSjrqo ^ what has been stated ia Wednesburv case, the court would not go into flie correctness offhe choice made by the administrator open to him and the court should not substitute its decision for fliat of fhe administrator. The scope ofiudicial review is limited to the deficiency in decision-makhig process aiid aot the decision." 12. In Ram Saiaa. Vs. 10 ofPolice, CRPF and others {(2006) 2 SCC 541} Supreme Court observed as under: "8. The courts should aot interfere with the admiiustrator s decision unless it was illoeical or sufFers irom procedural mipropriety or was shockiaf to the conseience ofthe court, in the sense that it was iii defiance of logic or moral staidards. In view of what has been stated in Associated Provincial Picture Houses Ltd. Vs. Wednesbum Corpn. (1984) 1 KB 223 : (1947) 2 A11 ER 680 (CA) conunonly kiiown as Wednesbury case the court would not go iiito the correetaess of tlie choice made by the adrnuiistrafor open to him and the court should not substitute its decision to that of fhe adniiiiistrator. Tho scope of judicial review is linuted to the defieiency in the decision-makitig process and not the decision. (See V.Ramanav. A.P. SRTC)." 13. Applyine the well settled priaciples oflaw to the facts ofthe case, it is not a case where the discrimination, arbitrariness or unreasonableness has been found in the impugned order. Thus, this petition is disnrissed. No order as to eosts. Sd/- Satish K. Agnihotri Judge Amit U-T"