'q ^is^-- IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) W. P. No.'j'.b^./.. . /2003 PETITIONER ^&a VERSUS KESPONDENTS ^\^ ,r €^.^^ ':/^/^ L/.c' The Election Commission Of India (as constituted under ^Sart xv of the Constitution of India) Nirvachan Sadan Ashok Road, New Delhi State of Chhattisgarh Through the Chief Secretary, D.K.S. Bhawan, Mantralaya, Raipur (Chhattisgarh) Dr. B.S. Anant S/0 Shri G.R. Anant Aged about 47 years Collector and District Magistrate Jashpur (Chhattisgarh) The Central Administrative Tribunal constituted under the Administrative Tribunals Act, 1985, Madhya Pradesh Principal Bench at Jabalpur (M.P.) PETITION UNDER ARTICLE 22^6/22 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRITS OF CERTIORARI AND MANDAMUS AND FOR OTHER SUITABLE WRITS AND DIRECTIONS: "f^^PS^ ^fc'EK. ^*iS3"aa> &^tflrt¥^t^>liS.A'Eb'ES' Afl; sJSTS ^%^?U£^ i7 QF Slection Cominission of India -Versus- State of Chhattisearh and others ET ETI i2i 2! Election Commission oflndia -Versus- State of Chhattisgarh and others Petitioner bv Respondent No. l/ yia.t^ Respondent No. 2 by Union of India bv Shri Kanak Tiwari with Shri Sandeep Dubey, Advocates Dr. N.K. Shukla, Addl. Advocate General. Shri Prashant Mishra, Advocate. Shri Vinav Harit, Sr. Central Govt. Standing Counsel. per Fakh»uddia,J. Both tlicsc pctitions involvc siniilar questions, as such they have been heai'd togeiher and being dlsposed of by common order. 2. The supcrintendencc, directions and control of electlons, preparation of Electoral rolls and conduct of all Elections for Pai"liaiTient aj.id State Legislatiu'e of everv' State vests under Article 324 ( l) of Constitution of India in Election Coniniisslon of India. It is provided that under Article 324(6) of the Constitution of India that the President or the Governor shaU when requested by the Electioii Cx)rainissioii niake available to it such staff as mav be necessai^ for the dischai'ge of tlie functions conterred on the Election Commission bv Article 324 (1) ofthe Constitution. 3. It is submitted bv the pelltioner that bv notlflcatlon issued bv ttie Commission, the State of Chtiattisgai''l'i made available the staff m.cludm.g District CoUectors/District Magistrate of the District and thev have been notified as District Election Oflicer/District Returning Officer. It is contended tliat ttiese officcrs/in fhe context ofelection relatcd work are deemed to be on deputation to the Election Commission and subiect to its disciplinaiT conti'ol. This has been nia.de explicit according to petition under Section 13CC of the Representation ofthe People Act 1950 aiid Section 28 A of the Representation of the People Act 1951. 4. It is submitted that the qziestion of disciplinan7 • jurisdiction of the Election Coniniission of India over officers _>•. J^;:."' \ ^f^ '>\. ^! under einploymcnt of Union of India and Oovernments of the States, Unlon Territories was fhe sublect matter of Writ Petition (CivU1 No. 606 of 1993 Gled by the Election Commission oflndia before HonTile the Supreme Court under Article 32 of the Constitution of India. During pendency of fhe writ petition with a view to resolving certain differences that had arisen between fhe Election Coiaiaission of India and Unlon of Indla discussions were held between the sald partles as well as nine other State Govemments which were parties to fhe writ petition. Consequent thereto ceitam agreed tenns of settleuient were orrived at between the Election Coiniaission of India and the Union of India as under:- The disclpUnary functions of the Electlon Commission over offlcers, staff and police deputed to perform election dufles shall extend to- a) Suspcnduig any officcr/official/policc pcrsonncl for insiibordination or dereliction ofduty; b) Substituting any officer/official/poUce personnel by another such person, and retuming the substituted individual to the cadre to which he belongs, with appropriate report on his conduct' c) Making recommendation to the competent authority, for takuig disciplinary action, for aay act of insubordination or dereliction of duty, wfaUe on election duty. Such recommendatlon shall be promptlv acted upon by the disciplinary authorit^', and action taken will be communicated to the Election Com.niission; wifhin a period of6 months from. the date of the Election Commission's recommendation. d) The Qovernment of India will advise the State Govemments fhat they too should foUow the above principles and dedsions, since a large rtucaber of election officials are under their adiuidistrative coiiti-ol. 4 5. It is subiaitted that the above ternis of settlement were taken note of by Honlle ftie Supreme Court and W.P. No. 606/1993 was disposed of in terms of settlement vide order dated 21-9-2000. A copv ofwhich has been field as Annexure P-1. Annexure P-1 is relevant and quoted belo\v:- •*»^^' ^ ORDER I.A. No. 5 of 2000 in W.P. (C) No. 606 of1993 As between the Election Coinruission of India and the Union of India (the petitioner and the first respondent to the writ petition, it is agreed that the writ petition be disposed of in terms of the Terms of Setflement recorded in paragraph (3) of the interim appUcation. Leamed counsel for the election Commission and the Unlon of India states that the States of Tripura, Maharashtra, Tami Nadu, Andhra Pradesh and Mizoram have accepted these terms in toto. Insofar as other States are concemed, fhere is some reservation either in respect of one or the other term or altogether. TIie wril peliliou is disposed of ui tei'ms of aforesaid Terms of Settlements. As against States ofher fhan respondents 4, 6 and 7, the writ petition is allowed to be withdrawn and the issue is left open to be agitated in t.he appropriated proceedings, ifraised. S.L.P. (C) No. 12481 qf 1993: Leamed counsel for the Election Commission of India (petitioner states that fhe special leave petition has become intructuous. It is disposed of as such. S.L.P. (C) No. 12721 of 1993 Leamed counsel states that the issue mvolved in the original writ petition has been setfled. On the application of leamed counsel for ttie petitioner, the special petition is dismissed as withdrawn. T.P. (C) No^72 of 1993: | The transfer petition relating to fhe afore-mentioned writ petition, therefore, does not survive and is dismisscd as withdrawn. T.P. (C) No. 774-75 of 1993: r^ V ' 4>^ Learncd counscl for the Elcction Coiumission of India (petitioner) states that these- transfer petitions have become infructuous. Tfaey are dlsposed ofas such. TWo. 39 of 1998; The petitioner in-person is not present despite notice. In any event, the issue is now settled by the Terms of Selllemciit belweeii llie Eleclioii Coiumissioii of Iiidla and the Uruon of India in Writ petition (c) No. 606 of 1993. The transferred case is, therefore dismissed." 6. It 1s further submltted that consequent to Annexure P-1, the Minlstrv ofPersonnel, Public Grievaiices and Pension issued Office Memoranda dated 7-11-2000 (Annexure P-2) ond on 8-11-2000 Union of India addressed to aU States •Oovemiuents and Uruon Temtories conveying to them. the terms of settlement and requested that the State Govemments may foUow the terms of settlement m the case of offidals deputed for RleRtion diities hy thc State Goveminent. Copy of vvhich has been filed as Annexure P-3. 7. It is contended ftiat the Electlon Commisslon had issued directives regardlng banning the transfer of officers connected with fhe General Election/Sve Election and sorae of thein are flled as Annexure P-4. It is contended that the petitioncr has also issued Code of Conduct for iiniversal applicalloii ui llie SlaLes wliei'e tlie Asseiublv elcctioiis ai'c to ^take place in the Month of November and December, 2003. A Couipendium ofDlrcctions/uistructions is filed as Annexure P-5. I... 8. It is subm.itted fh.at the directions/instructions cauie to thc knowlcdgc of rcspondcnt No. 2 on or about 10th Octobcr 2003. It is stated that the petitioner enjoys reslduan' powers for whlch no speGiHc law has been made or any statutory rules issued and uses such iurisdiction with regard to such residuary powers as and when deeraed fit in the larger interest offree and fair elections and therefore tlie provision is uiade that in thc spccial cu'cuinstances, transfers could be effected after permlsslon ofthe Election Commlsslon." 9. It is said that these powers are for a very limited period i.c. during thc coursc of election procccdings. It is contcndcd fhat rcspondcnt No. 3 Ccntral AdniuiistTative Tribunal has been constituted. The jiirisdiction, pow^ers and authority of fhe Central Admmistrative-Tribunal is given in Section 14 of the 1985 Act. It is subiuitted fhat Section 3fq) defines service laatters. The contention is that action of petitioner is that of incrcly shifting and does not fall within thc mischicf of the deflnitlon of serrice matters. It 1s submitted that the petitioner passed the order dated October 28, 2003 and issued directions to fhe State agsdnst CoUectors of Jashpur and Bastar for posting to Mantralaya. The State fherefore 7 passed order on 29th Oetobcr 2003 posting theui to Mantralava. It 1s stated that ihe Commlssion passed the order on receipt of the complaints. The Commission sought explanations of the District Election Officer and District CoUectors of Jashpur and Bastar reRarduig violfltion of the Code of Conduct by theui and after considenng the explanatlons offercd by them, fhe Election Coiumisslon directed that these offlcers be relleved of thelr duttes as District Election Officers and District Collectors with urunediate effect and esiven such postings that do not entail election related responsibUities. It is olso subiuitted that a panel of nam.es of IA9 officers was calted for by retum fax for the consideration of the Commlsslon for appolntment as District CoUectors and District Electlon Offlcer of Jashpur and Baster districts. 10. Counsel for thc petitioner submits that the rcspondent No. 2 ln each case holding the post of District Electlon Offlcer by vtrtue of Collector/District Magistrate presented the petitions before fhe Central Adiuinistrative Tribunal aggrieved by the order passed by fhe State. The reliefs claianed in those petitions are identical and are quoted below: - °(i) lo quasli llie uupusiied order dated (Aiuiexure A- 9) passed by fhe respondent No. 1. (ii) to call the relevant records. (iii) This H.on'ble Tribunal may kindly bc furthcr pleased to pass any siich other orders as t.his 8 -,76 HonTsle Tribunal inay dcem fit under fhc circumstances ofthe case." 11. The interim. reliefclaimed in para 9 of fhe petition before the Central Adrainistrative Tribunal is quoted below:- "Pcnding final dccision, thc operation and cffcct of thc impiigned order dat.ed Annexiire A-9, passed by t.he respondent No. 1;' may please be stayed and the petitioner be allowed to continue at fhe present place of posting." 12. TJie matter came up for hearing betbre ttie Central Adm.inlstrative Tribunal, which after hearing the counsel appearins for respective Collectors passed the orders on 31-10-2003. This order dated 31-10-2003 pasaed in O.A. No. 755/2003 in case of Collector Jagdalpiir by the Tribunal reads as under:- "31.10.2003 Shri P.R. Bhave, leamed Senior Advocate with Shri S.D. Gupta, leamed counsel for the apolicant. Heard the leamed coiinsel for the applicant. The appllcant who is a CoUector and Distnct Magistrate at Jagdalpur (Chhattisgarh) has flled thls OriKinal Application* and has sought a direction to auash the order dated 29-10-2D03 (Annexure A-7) by which he has been transferred to Secretariat Chhattisgarh State, Raipur. He has further sought a du'ectioii lliat peudui^ fiiial decisiou of tlus OA, Lhe operation and effect of the iinpupsned order dated 29-10-2003 be stayed. It has been alleged by the applicant that the imuusned or^^^assed by the respondent is^arbitrary, ~? punitivg&ricT h~ot-in compliance pfthe principles ofaudi attarumTpartam. Accordm.g to the applicant he has been ttransferred on the ground that he has vlolated the directions of the EIection Coiamission ond aUowed fhe distribution of five school bags even al'ter tKe order of fhe Election Coininission to stop the same. The applicant has stated that fhere is no lapse on the part of 9 ^) him and the dircctions issued by the Elcction Commission were promptly complied by him. He further submitted that the opportumty to fumish explanation given by the Election Commission was an empty formality, since the Election Commission has not consldered thc applicant's explanation bcfore passing the im.pugned order. Wc ai-e weU awai'e of Uie lesal positioii laid dowii by the Hon'ble Supreme Court that the Court/Tribunal should not interfer^. in the matter of transfers unless they are viola.ti.ve of statutory rules or have been issued with malaflde intentjon or are piinitive in natiire. Tn this case, the applicaat has alleged fhat the transfer inade by the respondents is arbitrary and punitive in nature and is in vlolatlon of prmciples of natural justlce and Article 14 of fhe Constitution of India. Issue notice to the respondents to show cause as to why tihls case be not adiaitted. Shri K.N. Pettua, Additional Standing Counsel for UOI present m the Court takes notice on behalf of respondent No. 3. The learned counsel for the applicant is directed to serve notices to respondents 1 & 2 by speed post. Let reply be fUed within a period of four weeks and rejoinder, if any; within a period of two weeks thereafter. As regards interim relief, a short reply be filed by the respondents witlun a period of 10 days. ln fhe meantunc status quo as existcd today shall be maintained. List it for further orders on 13-11-2003 at INDORE. C.C. be Rranted." More or less sunUar is fhe order passed in O.A. No. 754/2008 in case of Collector Jashpi.ir. The bone of contcntion is the interim ordcr in both casc to thc cffect that "As regwds interim, a short replu be flled bii the respondents within a period of 10 days.ln the meantime the status quo ds existed todaii shall be mam.tained." 13. II is submilled tliat LIic petitioiier/Electiou Gommissioii Qled reply before the learned Central Admmlstratlve Tribunal. 10 kv^ It also filed its lettcr datcd 28-10-2003 Annexiire (R-1/1), addressed to the Chlef Secretary, State of C.G. Annexure K. l/1 dated 28-10-2003 is relevant and quoted. below:- "Dear Sir, The Commissioii had received followuig complaints regarding violation of Model Code of Conduct in Jashpur and Bastar Districts. 1. The school bags with the photographs of Shri Ajit .Togi, ChiefMinister ofChhattisgarh are contimiing to be distributed. 2. Sonie spectacles iinder a Goverrunent prograimne were distributed by the wife of Shri Ajit Jogi, the Chief Minister of Chhattisgarh in ofGcial functions orRanized in Jashpi-ir and Bastar Distoct. 3. The District CoUector of Jashpur traveUed with Shri Aiit Jogi, Chief Minister of CUhattisgarh on a private Iielicopter requisitioned for electlon work by the Chief Minister. The Commission had sought explanations of the Distriet Election Officers and District CoUectors of Jashpur and Bastar regarding these violations. After considering the explanatlons offered by them, the Comraission finds their conduct unbecom.m.g of civU servants who exerdse statutory powers as District Elcction Officcrs and Rctuming Officcrs dnring thc election period. The Commission has directed that these officers inav be relieved of their duties as District Election Offlcers and District Collectors with immediate effect and given such positions that do not entail election related responsibillties. A panel of names ofIAS offieers mav kmdly be sent by retum fax for the consideration of the Comiaission for appointment as District CoUector and District Election Officers of Jashpur and Bastar Districts. Yours sincerelv (Anand Kuniar)" 14. The petitioner/Election Goiumlssion also filed an application for vacating stay and also filed an appHcation for pre-poiieiueuL of llie dale of lieaitiiR as llie iiomiiiatloii was lo start from 7-11-2Q03. The case came up for hearing before 11 < fhc leamed Cciltral Administrativc Tribunal on 5-11-2003 and fhe learned Trlbunal passed simllar orders tn bolh the petitions wfaich read as under:- "5.11.2003 SIiil S.D. Gupta, leaniied couiisel for tlie applicant. Shri K.K.Trivedi, leamed counsel for respondent No. 1. Shri K.N. PRt.hia, leamed coiinsel for respondent No. 3. None for respondent No. 2. This case was earller flxed for orders on 13.11,2003 at Indore. The respondent no. 1 has filed M.A. No. 1487/2003 tbr pre-ponement. Accordinglv, the case is taken up today. The order of status-quo was passed by this Tribunal on 31.10.2003 and In terms ofthe provisions of provlso to Section 24(b) of fhe Adiainistorative 'l'ribunals Act, 1985, the case was directed to be listed for hearing on 13.10.03. As there was no Dench avaUable at Jabalpiir, the case was Usted for heartng at Indore on 13.11.2003. One of the grounds taken by the respondent No. 1 for pre-poiiing the date of hearinR is the inconvenlence to bc faccd for hcaring at Indorc. The respondenl: No. 1 has also flled an application for vacaUon of stay (MA No. lfl-97/2003) and also a short reply to the OA. The Registry has pointed out that a copy of thesame Iias not been served to the opposite parties. The leamed counsel for the appllcant subinits that a couy of the same has been received bv him onlv ycsterday and he wants soiae short adiouminent to reply to the aforesaid MA for vacation of stay. He fiirther submlts that unless an opportumty of hearing 1s glven to the applicant to subinit his case against fhe MA for vacation of stay, he cannot argue the case properly. At fhis stage both fhe learned coiuisel for applicaiit as well as respondent No. 1 agreed that the case may be finallv flxed for hearing at Jabalpur on 21.11.2003. Accordmsly, Ust this case for fmal hearing at Jabalpur on 21.11.2003. In the m.eantim.e the respondents No. 2 & 3 are directed to file their replies. MA 1487/2003 is accordui^ly disposed of aiid tlie MA1497/2003 wUl be taken up for hearing at the time of flnal hearing. ~~r-.. 12 Interim ordcr to continue. C.c- be granted to the leamed counsel for parties as per niles." ^' 15. The present petitions have been filed by the pelilioiier/Eleclioii Comiuissioii agauist tlic order of respondent No. 3 dated 31-10-2003 as well as order dated 5-11.2003. 16. These matters came up for hearing on 7-11-2003 and at'ter hearing the counsel tbr the petitioner/EIection Coinmission, notices were issued to respondent No. 2 ui eacU petitione, fhe Addl. Advocate Generat took notice on behalf of the State/respondent No. 1 and as the Union of India waa -ItO also a party before the Tribunal, notlce was also glven^the Sr. Standing Counsel for the Union of India Shri Vinay Harit. On 10-11-2003, it was siihmitted that reftims on behalf of respondents No. 1 and 2 have been filed. It was stated by Shri Vinay Harit fhat he adopts the argument of the coiinsel for thc petitioncr. Coiinsel agrecd that the niattcr be heard finally and accordingly heard. 17. Dr. Shi-ilda, Addl. Advocate Generol appearing for the respondent No. 1/9tate subinitted that fhc State ofCQ on the reccipt of order dalcd 28-10-2003 issued t>y Uie Eleelioii Commlssion, issued order dated 29-10-2003 regarding posting of the Collector, .JaslipTir and ColleRtar Bastar and as II 13 ^ -^.••.''-,w •^- ^- such complied with thc du-cction ofElection Conimission. It is submltted that Collector Jashpur and Collector Bastar flled the petitions before tlie Central Administrative Tribunal and it is fhe Central Administrative Tribunal, which has passed fhe order. It is reiterated that State on its return has stated legal f' subinissions before this Gourt although on its part it has coinplied thc ordcr. In para vi of return, it is statcd that the order is consent order and as such it cannot be challenged as the same has been passed by the Tribunal which has jurisdiction. The other contention is that the orders are interiin orders ond as euch not amenable to writ iurisdiction ofthis Court under Article 227 ofthe Constitution of India. It 1s also submitted that Section 24 enables the Tribunal to pass interim orders and that having been passed cannot be challenged. Tt is ftirther siihmitted that. the Rlection Coinmission has already surrendered to the iurisdiction of Central Adniinistrative Tribunal by subm.ittiag reply to the main application as weU as application for vacating stay. It is also contended that the Tribunals have been constltuted under Article 323-A of the Constitution and cannot be subiected to iiidicial revlew. It has been contended ftiat the Coininission has recorded a categorical finding that the respondent No. 2 conducted in a uaanner whlch is uiibecoiuuiR oF a civU servaiil aild tlie Electioii Coiuiulssloii conducted an enqulry on the complaint made to it by seekin^ 14 »--l ^, cxplanations froni the respondent No. 2 and further that fhe election Commission consldered the material whlch was placed before it includmg ttie complalnt and explanatiQn of respondent No. 2- It is also contended that fhe Election Com.raission (petitioner) reached to the concluslon after due consideration that reapondent no.2 is guilty of misconduct to such an extent fhat his conduct is "unbccomkig of a CivU Servant". It 1s fl-irther contended that the above Qndings of the Election Commission which is a Constitutional Body of the highest rank woiild adversely affect fhe future prospects of respondent no.2 and it woiild be a weapon in the hands of the other coinpctitors for the future proruotion agaiaat respondent no.2. It 1s also submltted that fhe material whlch 1s in possession of respondent/State shows that the respondent No. 2 is not giiilty of vioTatine of any code of conduct laid down by the Election Coinraission. Lastiy it is reiterated that the jurisdiction is vested with the Central Adniinistrative Tribuaat. 18. The respondent No. 2 in each of the petltions have filed the return contending that the order passed by the State on 29-10-2003 is UleRal and contrarv' to law. It is also submitted lliat CoUeclor Baslai- lias iiotreceived aiiy coiuiu'uiiicatioii and explanation was not called for and he has not sutimitted .-'anv explanation. Tt. is contended that theTribiinal has right.ly 15 passed thc intcnm order and the ordcr is conscnt order. It is further submitted that the respondent No. 2 have not violated anv code ofconduct. They have compiied with the du'ections, fhev cannot he without remedv and they have exercised their ripsht by invoking jurisdiction of Central Aduiinistrative Tribunal and further the Tribunal has acted in accordance with law. It is subiaitted that the respondent/CoUectors are belng vlctlmlzed. 19. Section 14 of the Admtnistrative Tribunals Act deals with iiirisdiction, powers and authority of the Administrative Tribunals. Sectlon 14 reads as under:- "14. Jurisdiction, powers and authority of the Central Administrative Tribunal.-fl) Save as otherwise expresslv provided in this Act, the Central AdmiiuslraUve Tribuiial shall exeruise, 011 aiid froui tlie appointed day, atl the iurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to- (a) reeruitment, and matters oonceming recnijtmenl:, to any all-India Service or to any civil service ofthe union or a civil post under the Union or to a post connected with de'fence or in the defence services, being, in eifher case, a post filled by a civUian; (bj AU service matters conceming- (i) a member of any AU-India Servicc; or (ii) a person[not being a niem.ber of an AU India Servlce or a person referred to m clause (c)] appointed to any civil service of the Union or anv civil post under ttie Union; or (iii) a civUian [not being a member of an AU-India Service or a person referred to in clause ( c )1 appouited to aiiy defeiiue sei'vices orla post connected with defence, and pertaining to the service of such member, /- ~ person or civilian, in connection with thc affairs of the TJnion or of any State or of any local or other authority within the temtory of India or under the 16 control of the Ooverniacnt of India or of any corporation [or society] owned or controlled by the Govemment; (c) all service inatters pertainiag to service in coimection with the affairs of the Uiiion conceming a person appointed to ahy service or post referred to in sub-cla.use (u) or sub-clause (ui) of ulause (b), teuis a pcrsoii wliose services have been placed by a State Govemm.ent or any local or other authority;or any corporation [or Society] or other body, at the disposal of the Central Oovemment for siich appointmRnt." 20. Section 24 of tlie Administrative Tribimals Act confers iurisdiction and conditions as to niaking of interim. orders. Section 24 of the Administrative Tribunals Act is also relevant and quoted below:- "24. Condltlons as to maklng of