Praseetha M. and others v. State of Kerala, Election Commission of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 5TH DAY OF APRIL 2016/16TH CHAITHRA, 1938** ## **WP(C).No. 12734 of 2016 (N)** ## **----------------------------** ## **PETITIONER(S): -------------** ## **1. PRASEETHA M.** **AGED 31 YEARS, W/O.GANGADHARAN, MANAYALIL HOUSE, KEZHATTOOR P.O, MALAPPURAM DISTRICT.** ## **2. SINI M.V** **AGED 35 YEARS, W/O.T.P.SASIDHARAN, CHEMBANPALLY HOUSE, MANALAYA P.O, MALAPPURAM DISTRICT.** ## **3. REENA** **AGED 29 YEARS, W/O.UNNIKRISHNAN, PETAMANNA HOUSE, ARAKAPARAMBU P.O, MALAPPURAM DISTRICT.** **BY ADVS. SRI.P.SREEKUMAR SRI.P.A.MOHAMMED SHAH SRI.SOORAJ T.ELENJICKAL SRI.K.NANDAKUMAR SMT.MARY RESHMA GEORGE SRI.P.K.ABDU RAHEEM SMT.P.M.MAZNA MANSOOR** ## **RESPONDENT(S):** ## **--------------** ## **1. STATE OF KERALA** - **REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001.** **2. ELECTION COMMISSION OF INDIA NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI 110 001, REPRESENTED BY ITS PRINCIPAL SECRETARY.** **...2** **WP(C).No. 12734 of 2016 (N)** **-2-** ## **3. CHIEF ELECTORAL OFFICER** **ELECTION DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN 695 033.** **ADDITIONAL R4 SUO MOTU IMPLEADED** **ADDL.R4 THE DISTRICT COLLECTOR, MALAPPURAM** **ADDITIONAL R4 SUO MOTU IMPLEADED AS PER ORDER DATED 31.03.2016** **R2&3 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN. R1 & ADDL.R4 BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 12734 of 2016 (N)** **----------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-----------------------**|| |**P1.**|**COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED**| ||**15.12.15.**| |**RESPONDENT(S)' EXHIBITS**|| |**-----------------------**|| |**R2(A)**|**PHOTOCOPY OF THE PROCEEDINGS OF THE ELECTION COMMISSION**| ||**OF INDIA ADDRESSED TO THE CHIEF SECRETARY, STATE OF**| ||**KERALA NO. 437/1/ KL-LA/2016 DATED 29.03.2016**| |**R2(B)**|**PHOTOCOPY OF THE JUDGMENT DATED 07.04.2014 IN NUTAN**| ||**THAKUR V. ELECTION COMMISSION OF INDIA MISC.BENCH**| ||**NO.2796/2014**| |**R2(C)**|**PHOTOCOPY OF THE JUDGMENT IN ELECTION COMMISSION OF INDIA**| ||**V. STATE OF KARNATAKA (2013 (6) KAR LT 363).**| |**R2(D)**|**PHOTOCOPY OF THE JUDGMENT DATED 05.04.2007 IN ASHOK PANDE**| ||**V. ELECTION COMMISSION OF INDIA.**| |**R2(E)**|**PHOTOCOPY OF G.O. (RT) NO.2141/2016/GAD DATED 30.03.2016**| ||**ISSUED BY THE 1ST RESPONDENT**| **//TRUE COPY// P.A. TO JUDGE** **DS** ## **A. MUHAMED MUSTAQUE, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 12734 of 2016 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 05[th ] day of April, 2016 ## **J U D G M E N T** Petitioners are the Presidents of different Panchayat in Malappuram District. They approached this Court challenging a decision of the Election Commission of India transferring the District Collector in connection with the election conducted in the State of Kerala. 2. The petitioners' case is that the District Collector is initiating number of projects and this transfer would hamper implementation of those projects. Therefore, the transfer has to be interfered with. Further it is pointed out that as per Ext.P1, certain guidelines have been formulated by the Election Commission of India. The present transfer is in violation of the aforesaid guidelines. 3. In this matter, a statement has been filed by the Election Commission of India. In the statement, it is contended that by virtue of the power conferred on the ## **W.P.(C) No. 12734 of 2016** **-2-** Election Commission of India under Article 324 of the Constitution of India, the Election Commissioner is free to take any decision in the matter of conduct of elections and it is not fettered by any service rules or its own guidelines for taking the decision. It is further pointed out that the guidelines referred in the writ petition are not exhaustive guidelines. The Election Commission of India is free to take appropriate decisions in the light of the peculiar circumstances prevailing in the State or the District as the case may be. It is also submitted that the Election Commissioner cannot be compelled to give any reason for taking such a decision. The respondents also questioned the _locus standi_ of the petitioners. 4. It is to be noted that this is not a public interest litigation. This is a private litigation initiated by the Presidents of the Panchayat apprehending interference to the project being implemented by the District Collector. The _locus standi_ referred in the pleadings is that being the **-3-** ## **W.P.(C) No. 12734 of 2016** Presidents of constitutionally constituted elected body, they have a right to question the decision of the Election Commissioner. It is to be noted that the power as referred in the Election Commission of India under Article 324 of the Constitution of India has nothing to do with the provisions relating to the discharge of constitutional obligations carried out by the Local Self Government Institution. This is an independent provision relating to fair conduct of election. Therefore in no way petitioners are connected with the exercise of such power by the Election Commissioner. 'Aggrieved' in the sense has to be understood in relation to the power exercised by the Election Commissioner in relation to the decision and not in relation to any matter connected or independent thereto. Therefore the petitioners cannot claim _locus standi._ 5. The Division Bench of Karnataka High Court in **Election Commission of India v. State of Karnataka** (2013 (6) Kar LJ 363) had occasion to consider the issue. **-4-** ## **W.P.(C) No. 12734 of 2016** The judgment is produced by respondents along with the counter. In paragraph 27 and 28, it was held as follows: “27. Therefore under the scheme of the Act, clause (6) of Article 324 of the Constitution, read with Section 13CC of 1950 Act and Section 28A of the 1951 Act, makes it clear that the Government officials who are under the control of the Government when they are deputed to the Election Commission for the purpose of conduct of elections, their deputation would commence on and from the date of notification calling for such election and ending with the date of declaration of the results of such election. There is no law passed by the Parliament or the State Legislature providing for such transfer or deputation or appointment during the period of General Election. When there is no Parliamentary legislation or Rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections. Once the area is not covered by any legislation, then Article 324 being a reservoir of power, confers on the Election Commission power to pass such appropriate orders or issue such appropriate direction for conduct of free and fair election. ## **W.P.(C) No. 12734 of 2016** **-5-** 28. It is by virtue of such power conferred on the Election Commission, it has issued directions to the State Government to make available the officers who in their opinion are needed for conduct of election. In obedience of the said direction issued, the Government has passed the impugned order of transfer. Though in the impugned order, the word 'transfer' is used, it is to be understood in the context in which it is passed. It is not a transfer which is governed by All India Services Rules framed under the All India Services Act, 1951. The said Rule does not provide for transfer of a person appointed to the All India Service, to the Election Commission during election. Therefore when the said law is silent about how the services are to be utilized during elections, the Election Commission has a free hand and if it requests or directs the Government, the Government is bound to honour the said request/direction. The Election Commission has not assigned any reasons why they are displacing these applicants. The Election Commission has no obligation to give reasons for opting for such officers. Similarly, they are under no obligation to give reasons why the person incumbent is not required. It is the matter of confidence the Election Commission has in a particular officer. **-6-** ## **W.P.(C) No. 12734 of 2016** Having regard to the number of days these persons are going to be displaced, there is no obligation cast on the Election Commission either to give reasons or point out in what circumstances these transfers are effected. It is made clear that when a Government servant is transferred on a direction issued by the Election Commission, the said direction is to be understood in the context of conducting free and fair election. It has no reflection on the integrity or character or the capacity or competence of the said person. It cannot, under any circumstances, be held against him. The apprehension of the applicants that in the eye of the public or otherwise, it may amount to stigma, is without any substance. The impugned order does not cast any stigma on the applicant. Once the election process is over, they will be reverted back to their original position and therefore they cannot have any grievance whatsoever. As the period during which the transfer will be in force is a very short period and the purpose of such transfer being to conduct free and fair election, the said action cannot be found fault with on any count. In the matter of election, when the ultimate responsibility is that of the Election Commission, being a Constitutional authority, they have onerous **-7-** ## **W.P.(C) No. 12734 of 2016** responsibility of conducting free and fair election in order to preserve democracy in the country. It is to achieve the said object, for a limited period, the impugned order is passed.” 6. The above judgment would show that the Election Commissioner has no obligation to give any reason for transferring any officer. The paramount power which is conferred on the Election Commission is to ensure free and fair conduct of election. The court also cannot compel the Election Commissioner to give any reason for the decision. In view of the above, this writ petition is dismissed. Sd/- **A. MUHAMED MUSTAQUE JUDGE** ds