1 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT S.B. Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner and others. Date : 18.5.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.MS Singhvi for Mr.MR Singhvi, for petitioner. Mr.R Chirania ) for the respondents. Mr.BS Bhati ) - - - - - REPORTABLE Heard learned counsel for the parties. As per the order issued by the Election Commission of India (Annex-R.2/1), the Commission directed that to conduct free and fair election, a consistent policy is followed to ensure that officers, who are connected with the conduct of elections in the States, do not serve in their 2 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. home districts or places where they have served for long and decided that no officer connected with elections, directly or indirectly, should be allowed to continue in the present district of posting (a) if she/he is posted in her/his home district and (b) if she/he has completed three years in that district during last 4 years of would be completing 3 years on or before 31.5.2009. The Election Commission directed that the details of action taken obviously by the State Government may be intimated to the Commission for its information immediately and not later than 20.2.2009. Following above decision, the Election Commission of India issued directions to all the State Governments and to the Union Territories in India to transfer employees who are connected with conduct of election of 2009 in the States and are posted in his/her home district if he/she has completed three years service in the district during last five years or would be completing 3 years on or before 31.5.2009. In view of above direction of Election Commission of India, the petitioner has been transferred vide order dated 3 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. 27.2.2009 (Annex.1). His name is at S.No.119. He was working as Commissioner, Municipal Corporation, Jodhpur and he was transferred as Assistant Collector and Executive Magistrate (Headquarter), Amer (Jaipur) against the respondent no.4 Mr.Mool Chand who also completed three years posting in the district and was holding the said post. The respondent no.4 by the same order was transferred as Assistant Collector and Executive Magistrate (Headquarter), Ajmer and Executive Officer, Municipal Board, Pushkar (Ajmer). The respondent no.4 was transferred qua Ms. Sonia Yadav who was working as Assistant Collector and Executive Magistrate (Headquarter), Ajmer and Executive Officer, Municipal Board, Pushkar. Ms. Sonia Yadav was transferred as Project Manager, Scheduled Caste Development Corporation, Ajmer. Her transfer was against one Ms.Kamla who was holding the said post. Ms. Kamla was transferred from the post of Project Manager, Scheduled Caste Development Corporation, Ajmer to Assistant Collector and Executive Magistrate, Jaipur City, Jaipur. The Chief Election Officer of Rajasthan on 4 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. 2.3.2009 issued direction that during the Code of Conduct for election, there will be total ban on any transfer of any Government employee and further the transfer orders which have been issued and if have not been given effect, then during code of conduct period, the said transfer orders shall not be given effect and those persons who have not joined on transferred posts, shall not be allowed to join on the transferred posts. The petitioner who was transferred by order Annex.1 was relieved in the forenoon of 2.3.2009 and in the afternoon of 2.3.2009, the election notification was issued and the Code of Conduct came into force. The petitioner who was, after transfer order dated 27.2.2009, relieved on 2.3.2009, could not have joined his duties forthwith at Jaipur before afternoon of 2.3.2009, therefore, he could not join there as per orders of State Chief Election Officer dated 2.3.2009. The respondent no.4 who was holding the post where the petitioner was transferred on 27.2.2009, was not relieved before 2.3.2009, therefore, as per the same instructions 5 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. issued by the State Election Commission, the respondent no.4 could not have been relieved from the post. The Chief Election Officer of State of Rajasthan issued direction on 2.3.2009 making it clear that the officers who could not join on the transferred post, they may not be allowed to join on the transferred post and they be kept awaiting posting order. In view of the above reason, the respondent no.4 who was not relieved before 2.3.2009 forenoon continued on the post which he was holding before the order dated 27.2.2009 was passed and the petitioner could not join on the transferred post though relieved before afternoon of 2.3.2009 because he could not join on the transferred post before 2.3.2009 before coming into force of the Code of Conduct. The petitioner has raised several grounds in the writ petition including that the Chief Election Officer of the State had no jurisdiction to issue any direction like the direction issued vide order Annex.7 dated 2.3.2009. It is also submitted that the respondent no.4 should have been sent to his transferred post because of the reason that the person holding the post where the 6 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. respondent no.4 was transferred has already been relieved and the post was lying vacant. It is submitted that several orders have been passed in individual cases about various officers posting them to their transferred post even after 2.3.2009, copies of those orders have been placed on record by the petitioner as Annex.8 to Annex.10. It is submitted that the respondent no.4 has not been directed to join on the transferred post though, as others, he could not have been allowed to work on the post which he was holding before 27.2.2009 and instead of passing any order allowing him to join at the transferred place, an order was passed on 11.3.2009 allowing the respondent no.4 to continue on the post where the respondent no.4 was working before the order of his transfer was passed. According to the petitioner, the respondent State was bound to transfer the person who has completed 3 years of service in one place and was involved in the election. The petitioner should have been allowed to join at his transferred post because he had also completed period of 3 years in the city of Jodhpur and in view of the directions issued by the Commission, he should have been sent to 7 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. Jaipur. Learned counsel for the respondent Commission submitted a detail reply and pointed out that the Commission has issued the order Annex.R-2/1 providing for transfer of the officers covered under the category referred above and the process of transfers should have been completed by 20.2.2009. The Commission itself could not have examined all the orders of transfer and any allegation of irregularity. Therefore, instead of passing any order by the Commission, the Commission directed that the Chief Electoral Officer shall examine all these issues and only when it is absolutely necessary, individual references should be forwarded to the Commission after considering all aspects by the Chief Electoral Officer with his specific recommendations. In view of the above reason, the Commission has not committed any wrong nor the Chief Electoral Officer has committed any wrong nor he has passed any order exceeding his jurisdiction. Learned counsel for the respondent State 8 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. vehemently submitted that this Court passed a detail order on 18.3.2009 that “In the meanwhile, operation of order Annex.8 dated 5.3.2009 qua the petitioner shall remain stayed and the respondents are at liberty to allow the petitioner to join either at the place from where he was transferred or at the place where he was so transferred vide order Annex.1 dated 27.2.2009.”. According to learned counsel for the respondent State, following the directions of this Court, the State Government passed an order on 24.3.2009 and he was allowed to join the post at Jodhpur. In view of the above order dated 24.3.2009, according to learned counsel for the respondents, the present writ petition has become infructuous. It is submitted that this Court permitted the respondent State to post the petitioner anywhere either at Jodhpur or Jaipur and since the State Government has passed the order allowing the petitioner to hold the same post before 27.2.2009, then there is no reason for any grievance of the petitioner now. Learned counsel for the respondent State further vehemently submitted that the respondent no.4 was not relieved before afternoon of 9 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. 2.3.2009, therefore, he could not have joined on transferred place in view of the instructions given by the Chief Electoral Officer of the State vide order dated 2.3.2009 (Annex.7). Thereafter, by order dated 10.3.2009, he has already been allowed to continue on the same post at Jaipur which he was holding before 27.2.2009. It is submitted that now any order for the petitioner cannot be passed so as to allow him to join the post which is now being held by the respondent no.4. However, learned counsel for the State frankly admitted that the order dated 27.2.2009 has not been withdrawn and admittedly, it was not given effect because of continuation of code of conduct for parliamentary elections and ban will come to end on 28.5.2009. I considered the submissions of learned counsel for the parties and perused the facts of the case and the documents placed on record. There is no dispute that the election process started and code of conduct came into force from afternoon of 2.3.2009. Before that, the Commission directed to transfer certain categories of persons 10 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. holding the posts wherein the petitioner and the respondent no.4 both were falling in the same category as they completed three years of service in the district by that time. The transfers should have been made before 20.2.2009 but orders were passed on 27.2.2009 transferring the petitioner and the respondent no.4. The petitioner was relieved in the forenoon of 2.3.2009 i.e. before declaration of the election. The petitioner could not join at his transferred place before the forenoon of 2.3.2009 and, thereafter, he could not have been allowed to join at his transferred place because of the order passed by the Chief Electoral Officer dated 2.3.2009 (Annex.7). The respondent no.4 was not relieved before afternoon of 2.3.2009 and, therefore, he could not have been relieved in view of some of orders of Chief Electoral Officer dated 2.3.2009 (Annex.7). However, certain similar cases were referred to Chief Election Officer of the State for giving effect to transfers made to meet requirement of decision taken by Election Commission of India. The copies of a few orders about several employees have been placed on record by the petitioner which shows that approvals were granted for relieving or joining as the case may 11 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. be, during election process for the persons who were not relieved or could not join the transferred place. It is not in dispute that the respondent no.4 was transferred to the post of Assistant Collector and Executive Magistrate (Headquarter), Ajmer and that post was vacant but his case was not forwarded for posting him to the transferred place of Assistant Collector and Executive Magistrate (Headquarter), Ajmer cum Executive Officer, Municipal Board, Pushkar (Ajmer) for the reasons best known to the respondents and by order dated 10.3.2009 (Annex.11) allowed to work on the post he was holding prior to the order dated 27.2.2009 inspite of the fact that if the respondent no.4 would have been sent to his transferred place to comply with the directions of the Election Commission as has been done in other case vide Annex.8 to 10 than the petitioner also could have been posted at Jaipur which would have been in consonance to the direction of Election Commission of India. Therefore, the action of the respondents not asking the respondent no.4 to join at his place of transfer as well as not allowing the petitioner to join at his place of transfer was wrong and 12 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. contrary to the direction of the Election Commission of India. The question arises what is the effect of the order dated 24.3.2009. According to the respondents, after 24.3.2009, there should not be any grievance of the petitioner as he was working at Jodhpur before 24.3.2009 and the writ petition deserves to be dismissed. The order dated 24.3.2009 clearly says that the said order has been passed in compliance to the order issued by this Court in this writ petition. If the writ petition is dismissed as infructuous, the interim order dated 18.3.2009 will come to an end forthwith and it is an admitted case that the order dated 27.2.2009 transferring the petitioner has not been cancelled by any subsequent order. The Code of Conduct is about to come to an end by 28.5.2009 as per learned counsel for Commission and learned counsel for State. Since the order dated 27.2.2009 is in force and, therefore, so far as transfer of the petitioner from the office of Commissioner, Municipal Corporation, Jodhpur to the post of Assistant Collector and Executive Magistrate (Headquarter), Amer (Jaipur) is 13 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. concerned, it is in force. The respondent no.4 is continuing on the post which he was holding and over which the petitioner was transferred by virtue of the order dated 18.3.2009, therefore, he will have to leave the said post to accommodate the petitioner. It is not in dispute that the respondent no.4 was also transferred vide order dated 27.2.2009 and, therefore, to give effect to the petitioner's transfer order, if any consequential order is required to be passed by the respondents and particularly, to give effect to the order dated 27.2.2009, the respondents can certainly issue fresh transfer order for his posting as suitable to administrative exigencies if he cannot be sent to his place of transfer vide order dated 27.2.2009. It is a different story that the petitioner is seeking enforcement of his transfer order. The fact situation is very peculiar in the present case. The petitioner could have been allowed to join the duty on the post which was held by the respondent no.4 and the respondent no.4 could have been allowed to join to his transferred place if his case would have been sent to the Chief 14 SB Civil Writ Petition No.2130/2009 Dinesh Kumar Panwar. vs. The Chief Election Commissioner & Ors. Election Officer for posting him against the vacant post. There was no justification shown for not sending the matter to the Chief Election Officer for allowing the respondent no.4 to join on the vacant post which already fallen vacant. If the respondent no.4 would have been posted at his transferred place, the petitioner could have been allowed to join the duty even during the currency of the code of conduct as has been done in very many cases which is clear from the various orders placed on record by the petitioner and which are not in dispute. In view of the above, this writ petition is allowed, the respondents are directed to withdraw the order dated 11.3.2009 and allow the petitioner to join at his transferred place in view of the order dated 27.2.2009 but the effect to this direction given in this judgment will be given only after 28.5.2009 i.e. after the end of code of conduct issued by the Election Commission. (PRAKASH TATIA), J. S.Phophaliya